explanatory notes to children and families act 2014 · 2020. 4. 23. · these notes refer to the...

These notes refer to the Children and Families Act 2014(c.6) which received Royal Assent on 13 March 2014

CHILDREN AND FAMILIES ACT 2014

EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Children and Families Act 2014 which receivedRoyal Assent on 13 March 2014. They have been prepared by the Department forEducation, the Ministry of Justice and the Department for Business, Innovation andSkills in conjunction with the Department for Work and Pensions and the Departmentof Health. Their purpose is to assist the reader in understanding the Act. They do notform part of the Act and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Act. They are not, and are not meantto be, a comprehensive description of the Act. So where a section or part of a sectiondoes not seem to require any explanation or comment, none is given.

BACKGROUND AND SUMMARY

3. The Act takes forward a range of Government commitments which are intended toimprove services for key groups of vulnerable children (children in the adoption andcare systems, those affected by decisions of the family courts and those with specialeducational needs and disabilities) and to support families in balancing home and worklife, particularly when children are very young. It takes forward legislation that has beenannounced in a range of Government documents over the past 2 years, including:

• An Action Plan for Adoption: Tackling Delay (March 2012).

• Further Action on Adoption: Finding More Loving Homes (January 2013).

• The Government Response to the Family Justice Review (February 2012).

• Support and aspiration: A new approach to special educational needs and disability:Progress and next steps (May 2012).

• More great childcare (January 2013) and More affordable childcare (July 2013).

• The Government Response to the Modern Workplaces consultation (November2012).

4. The Act contains provisions on a range of policies which span the responsibilities ofthe Department for Education, the Ministry of Justice, the Department for Business,Innovation and Skills, the Department for Work and Pensions and the Departmentof Health. It contains measures intended to remove barriers to adoption; reform thefamily justice system and the special educational needs system and ensure that servicesplace children and young people at the centre of decision making and support. Itcontains measures which relate to the welfare of children, including areas such as:child performance; protecting children and young people from tobacco and nicotineaddiction; young carers and parent carers; “staying put” arrangements; supportingpupils at school with medical conditions; reform of children’s homes; clarifying theSecretary of State’s intervention powers; and free school lunches. The Act containsmeasures which support wider changes to childcare; introduces a new system of shared

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parental leave following childbirth or adoption; and extends to all employees the right torequest flexible working. Through its reforms to the functions and role of the Children’sCommissioner, the Act is intended to ensure that children in England have a strongadvocate for their rights.

5. Pre-legislative scrutiny was conducted in relation to Parts 1, 2, 3 and 6 during 2012.The Government published its response in the Command paper Children and FamiliesBill: Contextual Information and Responses to Pre-Legislative Scrutiny (CM8540) on5 February 2013.

6. The Act consists of 10 Parts, 140 sections and 7 Schedules.

7. Where explanatory notes are provided for Schedules, these are included in the notes forthe relevant sections. Annex A of this document sets out further detail relating to theparental involvement provision.

Part 1: Adoption and contact

8. Part 1 of the Act contains provisions to give effect to proposals in An Action Plan forAdoption: Tackling Delay, published by the Department for Education on 14 March2012, and Further Action on Adoption: Finding More Loving Homes, published on 24January 2013. These set out proposals to speed up the adoption process and enable morechildren to be placed in stable, loving homes with less delay and disruption. The Actincludes provisions which are intended to:

• Allow persons with a prescribed relationship to a person adopted before 30December 2005 to have access to intermediary services to facilitate contact betweenthem and the adopted person’s birth relatives;

• Encourage local authorities to place children for whom they are consideringadoption with their potential permanent carers more swiftly, by requiring a localauthority looking after a child for whom they are considering adoption to place themwith foster carers who are also approved prospective adopters, on a fostering basis.The provisions require the local authority first to consider family and friend carers;

• Reduce delay by removing the explicit legal wording around a child’s ethnicityso that black and minority ethnic children are not left waiting in care longer thannecessary because local authorities are seeking a perfect or partial ethnic match;

• Enable the Secretary of State to require local authorities to commission adopterrecruitment services from one or more other adoption agencies;

• Give approved prospective adopters a more active role in identifying possiblematches with children for whom the local authority are considering adoption, orchildren whom the local authority are satisfied ought to be placed for adoptionbut whom they are not yet authorised to place by virtue of parental consent ora placement order, by amending the current restrictions in relation to “publicinspection or search” of the Adoption and Children Act Register so that they canaccess the register directly, subject to appropriate safeguards;

• Improve the current provision of adoption support by placing new duties onlocal authorities to provide personal budgets upon request and to give prospectiveadopters and adoptive parents information about their entitlements to support;

• Make changes to the arrangements for contact between children in care and theirbirth parents, guardians and certain others and adopted children and their birthfamilies, former guardians and certain others with the aim of reducing the disruptionthat inappropriate contact can cause to adoptive placements.

9. Pre-legislative scrutiny of the provisions on “Fostering for Adoption” and ethnicitywas undertaken by the House of Lords Select Committee on Adoption Legislation.The Committee’s Interim Report containing its recommendations on these provisions

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was published on 19 December 2012. The Government response was published on 5February 2013 as part of Children and Families Bill 2013: Contextual Information andResponses to Pre-Legislative Scrutiny.

Part 2: Family justice

10. Part 2 makes changes to improve the operation of the family justice system, asrecommended by the independent Family Justice Review and accepted by theGovernment in its response published on 6 February 2012. The Family Justice Review,chaired by David Norgrove, was set up by the Government in 2010 to look at the familyjustice system and make recommendations as to how the system could be changed forthe benefit of children and families. An Interim Report was published in March 2011and the Family Justice Review Final Report was published in November 2011.

11. In respect of private family law (by which is meant the law about resolving disputesbetween family members, as distinct from public family law, about intervention bypublic authorities), the Act includes provisions to:

• Require a potential applicant to attend a family mediation, information andassessment meeting to find out about and consider mediation before being able toapply for certain types of court order;

• Send a clear signal to separated parents that courts will take account of the principlethat both should continue to be involved in their children’s lives where that issafe and consistent with the child’s welfare, which remains the court’s paramountconsideration;

• Introduce a “child arrangements order”, replacing residence and contact orders;

• Make changes so that when a child arrangements order is breached, the courtcan direct the parties to undertake activities designed to help them understand theimportance of complying with the order and making it work;

• Streamline court processes in proceedings for a decree of divorce, nullity ofmarriage, or judicial separation (or, in relation to a civil partnership, for adissolution, nullity or separation order) by removing the requirement for the court toconsider whether it should exercise any of its powers under the Children Act 1989.Arrangements for children can be decided at any time through separate proceedingsunder the Children Act 1989.

12. In respect of public family law, the Act includes provisions to:

• Introduce a maximum 26 week time limit for completing care and supervisionproceedings with the possibility of extending the time limit in a particular case forup to eight weeks at a time, should that be necessary to resolve the proceedingsjustly;

• Ensure that the timetable for the case is child focused and decisions about it aremade with explicit reference to the child’s welfare;

• Make it explicit that, when the court considers a care plan, it should focus on thoseissues essential to deciding whether to make a care order; and

• Remove the eight week time limit on the duration of initial interim care orders andinterim supervision orders, and the four week time limit on subsequent orders, andallow the court to make interim orders for the length of time it sees fit, although notextending beyond the date when the relevant care or supervision order proceedingsare disposed of.

13. In respect of experts, the Act includes provision to ensure that expert evidence inchildren proceedings is permitted only when necessary to resolve the case justly,taking account of factors including the impact on the welfare of the child, and

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whether the information could be obtained from one of the parties already involvedin the proceedings. Family Procedure Rules are to prescribe the meaning of "childrenproceedings" which may include both private and public law proceedings.

14. Pre-legislative scrutiny of the family justice sections was undertaken by the Houseof Commons Justice Select Committee. The Committee published its report on 14December 2012 and the provisions in Part 2 reflect the Government’s response to thereport, published on 5 February 2013 (Children and Families Bill 2013: ContextualInformation and Responses to Pre-Legislative Scrutiny).

Part 3: Children and young people in England with special educational needs ordisabilities

15. Part 3 of the Act contains provisions following the Green Paper Support andAspiration: A new approach to special educational needs and disability published bythe Department for Education on 18 March 2011 and the follow up Progress and NextSteps published 15 May 2012.

16. The provisions are a major reform of the present statutory framework for identifyingchildren and young people with special educational needs (SEN), assessing their needsand making provision for them. They require local authorities to keep local provision forchildren and young people with SEN and disabilities under review, to co-operate withtheir partners to plan and commission provision for those children and young peopleand publish clear information on services they expect to be available. The provisionsset out the statutory framework for identifying, and assessing the needs of, children andyoung people with SEN who require support beyond that which is normally available.Statements made under section 324 of the Education Act 1996 and Learning DifficultyAssessments made under section 139A of the Learning and Skills Act 2000 are replacedby new 0-25 Education, Health and Care plans (EHC plans) for both children and youngpeople. The provisions place a new requirement on health commissioners to deliver thehealth care services specified in plans.

17. The provisions extend the rights that parents of children with statements of SENcurrently have, to express a preference for the school they wish their child to attend,to young people in education and training (including further education). In addition,they widen the institutions for which they can express a preference to include Academyschools, further education colleges and sixth form colleges, non-maintained specialschools and independent special schools and independent specialist colleges approvedfor this purpose by the Secretary of State.

18. The provisions are also intended to give parents and young people greater controlover the way their support is provided through involvement with local authorities inreviewing services and through the option of personal budgets in certain circumstances.They introduce a requirement to consider mediation before appeals are made to theFirst-tier Tribunal. This is to help resolve disagreements without the need for Tribunalappeals wherever possible. The provisions also extend the right to appeal to youngpeople in education and training (including further education); include a power to pilotgiving children the right to make appeals to the Tribunal themselves, rather than ithaving to be through their parent; and to pilot the Tribunal making recommendationson the health and social care provision set out in an EHC plan.

19. The sections replace and extend, in relation to England, provisions in Part 4 of theEducation Act 1996, associated regulations, and sections 139A to 139C of the Learningand Skills Act 2000, which will be repealed in relation to children and young peoplein the area of a local authority in England. Regulations will set out the detailedrequirements of particular provisions where provided for in the sections. A statutoryCode of Practice will be developed to provide guidance on the new framework for SEN,for the approval of Parliament.

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20. Pre-legislative scrutiny of the SEN provisions was undertaken by the House ofCommons Education Select Committee. The Committee published its report on 18December 2012 and the provisions in Part 3 reflect the Government’s response to thereport, published on 5 February 2013 (Children and Families Bill 2013: ContextualInformation and Responses to Pre-Legislative Scrutiny).

Part 4: Childcare etc

21. Part 4 of the Act contains various provisions relating to childcare, some of which flowfrom proposals described in More Great Childcare which the Government publishedon 29 January 2013 and which includes the Government’s response to Professor CathyNutbrown’s report, Foundations for Quality (published in June 2012). Section 3D ofMore Great Childcare refers to the plans to introduce childminder agencies.

22. This Part contains provision:

• For childminder agencies (that is persons who are registered in the appropriatechildcare register by Her Majesty’s Chief Inspector of Education, Children’sServices and Skills (“the Chief Inspector”) and who are therefore able to registerchildminders and other providers of childcare on domestic premises for thepurposes of Part 3 of the Childcare Act 2006);

• For the Chief Inspector to charge a fee for carrying out an inspection of earlyyears childcare provision where the inspection is carried out at the request of theprovider and the Chief Inspector is required by the Secretary of State to conductthe inspection;

• To allow regulations to be made about the way local authorities meet their duty tosecure early years provision for young children;

• Repealing the duty in section 11 of the Childcare Act 2006 on English localauthorities to prepare, at least every three years, an assessment of the sufficiencyof the provision of childcare in their area;

• To remove the requirements in section 28 of the Education Act 2002 on governingbodies of maintained schools to consult with local authorities, staff and parentson whether to offer community facilities or services. This would remove a currentburden on schools considering offering before and after school childcare, amongstother services. It also removes the requirement for the governing bodies to haveregard to advice or guidance from the Secretary of State or local authorities beforeproviding such facilities;

• For Her Majesty’s Revenue and Customs (HMRC) to undertake preparatoryexpenditure in relation to the introduction of a scheme for providing assistance inrespect of the costs of childcare.

Part 5: Welfare of Children

23. Part 5 of the Act contains various provisions relating to the welfare of children,including to:

• Repeal section 38 of the Children and Young Persons Act 1963, in relation toEngland and Wales, removing restrictions on the circumstances in which a localauthority can issue a performance licence to a child under the age of 14;

• Protect children and young people from tobacco and nicotine addiction;

• Consolidate legislation relating to the rights and support for young carers and parentcarers, and extend their rights to assessment;

• Enable former looked after children to continue to live (“stay put”) with theirformer foster parents until age 21, if the local authority determines that it would be

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appropriate for them to do so and both the young person and the foster parent wishto make a “staying put” arrangement;

• Amend section 22 of the Children Act 1989 to require local authorities in Englandto appoint an officer for the purpose of discharging the authority’s duty to promotethe educational achievement of the children they look after;

• Place a duty on governing bodies of maintained schools, proprietors of Academiesand management committees of pupil referral units to make arrangements forsupporting pupils at school with medical conditions;

• Clarify the law in relation to the Secretary of State’s power to intervene undersection 497A(4A) of the Education Act 1996 and section 50 of the Children Act2004, where a local authority is failing to deliver children’s services to an adequatestandard;

• Support the reform of children’s homes, particularly by enabling the developmentof a regulation and inspection framework that sets high standards for children inresidential care and offers them the support required to achieve positive outcomes;

• Ensure that all state-funded schools – both maintained schools and Academies– have an obligation to provide free school lunches on request for all pupils inreception, year one and year two.

Part 6: The Children’s Commissioner

24. Part 6 of the Act implements the recommendations from John Dunford’s independentreview of the Children’s Commissioner (Review of the Office of the Children’sCommissioner (England): December 2010), which concluded that there were strongarguments for retaining the office of Children’s Commissioner (“OCC”), but that thelegislative framework had prevented the Commissioner from having sufficient impacton children’s lives. The provisions in the Act aim to remove the barriers that JohnDunford identified, in particular by:

• Amending the Commissioner’s primary function to one of promoting andprotecting children’s rights;

• Making the Commissioner more clearly independent from Government;

• Providing for greater scrutiny of the Commissioner’s impact, through an annualreport to Parliament;

• Combining the functions of the Commissioner with the activities currently carriedout by the Children’s Rights Director;

• Clarifying the Commissioner’s powers and remit.

25. Pre-legislative scrutiny of the OCC sections was undertaken by the Joint Committeeon Human Rights (JCHR). The Government’s response to the report was publishedon 5 February 2013 (Children and Families Bill 2013: Contextual Information andResponses to Pre-Legislative Scrutiny).

Part 7: Statutory rights to leave and pay

26. Part 7 of the Act delivers the legislative commitments made in the GovernmentResponse to the Modern Workplaces consultation (November 2012). The provisionscreate a new employment right to shared parental leave and statutory shared parentalpay for eligible working parents. Women continue to be eligible for maternity leaveand statutory maternity pay or allowance in the same way as previously. If they chooseto bring their leave and pay or allowance to an early end, eligible working parents canshare up to the balance of the remaining leave and pay as shared parental leave and pay.Eligible adopters can use the new system for shared parental leave and pay. Adoption

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leave and pay include prospective parents in the “Fostering for Adoption” system, andparents in a surrogacy arrangement who are eligible, and intend to apply, for a parentalorder.

Part 8: Time off work: Ante-natal care etc

27. Part 8 creates a new right for employees and qualifying agency workers to take unpaidtime off work to attend up to two ante-natal appointments with a pregnant woman. Theright is available to the pregnant woman’s husband, civil partner or partner, the fatheror parent of the pregnant woman’s child, and intended parents in a surrogacy situationwho meet specified conditions.

28. Provision is made for paid and unpaid time off work for adopters to attend meetings inadvance of a child being placed with them for adoption.

Part 9: Right to request flexible working

29. Part 9 provides for the expansion of the right to request flexible working fromemployees who are parents or carers to all employees, and the removal of the statutoryprocess that employers must currently follow when considering requests for flexibleworking. The Government’s policy reforms for the right to request flexible working areset out in its paper Modern Workplaces – Government Response on Flexible Working(published in November 2012). This Part sets out the statutory provisions to supportthose reforms.

30. Changes enable employers to consider requests using their existing HR processesinstead of having to follow a statutory procedure.

31. These sections amend the Employment Rights Act 1996 (“ERA”). Followingconsultation the Advisory, Conciliation and Arbitration Service (“ACAS”) haspublished a draft Code of Practice on handling requests to work flexibly in a reasonablemanner. This Code will explain what the minimum requirements are in order to considera request in a reasonable manner. If neither House of Parliament resolves that no furtherproceedings shall be taken, the Code of Practice will be issued using powers in theTrade Union and Labour Relations (Consolidation) Act 1992 and will be brought intoforce by order on a date appointed by the Secretary of State.

TERRITORIAL EXTENT AND APPLICATION

32. Except where stated otherwise below, the Children and Families Act 2014 extends toEngland and Wales only, and applies to England only. The significant exceptions areexplained in the text below. Annex B sets out the territorial extent and application ofeach of the sections in a table.

Scotland

33. Section 7 and Schedule 1 amend sections 125 to 131 (which have not been commenced)of the Adoption and Children Act 2002, which provide for the establishment of theAdoption and Children Act Register (“the register”). The register contains informationabout children who are suitable for adoption and for whom the local authority areconsidering adoption and prospective adopters who are suitable to adopt a child. Thissection removes Wales and Scotland from the scope of these sections and provides forthe establishment of a register that applies in relation to England only.

34. Section 94 gives the Secretary of State the power to make regulations to standardisetobacco packaging if he or she considers that they may contribute to reducing therisk of harm to or promoting the health or welfare of children. The Secretary of Statemust obtain the consent of the Scottish Ministers before making regulations containingprovisions which would be within the legislative competence of that Parliament.

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35. Part 6 of the Act (sections 107 to 116) amends Part 1 of the Children Act 2004, toreform the office of Children’s Commissioner. Part 1 of that Act extends to the wholeof the UK. The changes made by Part 6 apply to the Commissioner’s role in promotingand protecting the rights of children in Scotland, but only in relation to non-devolvedmatters.

36. Parts 7, 8 and 9 of the Act (sections 117 to 134) contain amendments to the EmploymentRights Act 1996 (ERA) and the Social Security Contributions and Benefits Act 1992(SSCBA) to make provision for statutory rights to leave and pay, time off work for ante-natal and adoption appointments, and flexible working. The sections relate to reservedmatters and extend to Scotland.

Northern Ireland

37. Section 94 gives the Secretary of State the power to regulate tobacco packaging if heor she considers that regulations may contribute to reducing the risk of harm to orpromoting the health or welfare of children. The Secretary of State must obtain theconsent of the Office of the First Minister and deputy First Minister before makingregulations containing provisions which would be within the legislative competence ofthe Assembly.

38. Part 6 of the Act (sections 107 to 116) reform the office of Children’s Commissioner.These changes apply to the Commissioner’s role in promoting and protecting the rightsof children in Northern Ireland, but only in relation to non-devolved matters. In somecases section 126(3) and (4), in Part 7 of the Act, also extends to Northern Ireland.

Wales

Part 1: Adoption and contact

39. Section 1 amends section 98(1) of the Adoption and Children Act 2002 so thatregulations can make provision to facilitate contact between persons with a prescribedrelationship to a person adopted before 30 December 2005 and the adopted person’sbirth relatives. Regulations will be made by the Welsh Ministers in relation to Wales.

40. In relation to section 7 and Schedule 1 see paragraphs 70 to79.

41. Sections 8 and 9 of the Act amend provisions in the Children Act 1989 and the Adoptionand Children Act 2002 which deal with contact between a child in the care of thelocal authority and their birth family and certain other people. Family proceedings arenon-devolved matters and so the provisions relating to these apply to Wales. Adoptionpolicy and functions of local authorities in relation to adoption are matters devolvedto the Welsh Government and the provisions which relate to local authorities’ dutiesin relation to contact in the Children Act 1989 (other than section 7(2)) do not applyto Wales.

Part 2: Family justice

42. Part 2 of the Act (sections 10 to 18) makes provisions that reform the family justicesystem. All of the sections relate to family law and proceedings with one exception setout in the text below. Family law and proceedings are a non-devolved matter and sothese provisions also apply to Wales.

43. Section 15 amends section 31A of the Children Act 1989 which relates to care ordersand care planning. Care planning is an area where the National Assembly for Waleshas legislative competence. The amendments to section 31A(1) confer a new power onWelsh Ministers to allow them to prescribe by regulations the time within which a careplan (which a local authority in Wales is responsible for preparing) must be preparedby the local authority.

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44. In addition, section 12 introduces a “child arrangements order” which has aconsequential impact on the power of Welsh Ministers to make regulations. The powerthat is affected is not one that falls within an area of Assembly legislative competencebut the changes affect an area of Welsh Ministers’ executive competence.

Part 3: Children and young people in England with special educational needs ordisabilities

45. Part 3 of the Act (sections 19 to 83) makes provision that reforms the special educationalneeds system. These provisions extend to England and Wales, but the majority onlyapply in England. Schedule 3 makes consequential amendments to existing provisionsso that they apply to Wales only. There will be some cross border effects, where a childor young person in England attends a school or institution in Wales, and the amendmentmade by section 60 applies in Wales. The amendment does not change the effect of theamended provision as it applies in Wales. Section 70 provides the Secretary of Statewith a power to make regulations to apply provisions in relation to those in custody,with or without modification. The Secretary of State is required to consult the WelshMinisters before making any such regulations where they apply to a person who isdetained in Wales.

Part 5: Welfare of children

46. Section 90 repeals section 38 of the Children and Young Persons Act 1963 in relation toEngland and Wales only, to remove restrictions on the circumstances in which a localauthority can issue a performance licence to a child under the age of 14.

47. Sections 91 to 95 make provision to protect children and young people from tobacco andnicotine addiction. Section 91 introduces an offence of “proxy purchasing” of tobaccoproducts and cigarette papers. Sections 92 and 93 provide the Secretary of State withthe power to make regulations to prohibit the sale of nicotine products to persons underthe age of 18. Section 94 gives the Secretary of State the power to regulate tobaccopackaging if he or she considers that regulations may contribute to reducing the riskof harm to or promoting the health or welfare of children. The Secretary of State mustobtain the consent of Welsh Ministers before making regulations containing provisionwhich would be within the legislative competence of the National Assembly for Wales.Section 95 amends smoke-free legislation to provide the Secretary of State, or the WelshMinisters in relation to Wales, with the power to make regulations to provide for aprivate vehicle to be smoke-free when a person under the age of 18 is present.

48. Section 101 applies to England and Wales.

Part 6: The Children’s Commissioner

49. Part 6 of the Act (sections 107 to 116) reforms the office of Children’s Commissioner.These changes apply to the Commissioner’s role in promoting and protecting the rightsof children in Wales, but only in relation to non-devolved matters.

Parts 7, 8 & 9: Statutory rights to leave and pay, Time off work: ante-natal careetc and Right to request flexible working

50. Parts 7, 8 and 9 of the Act (sections 117 to 134) make provision for statutory rightsto leave and pay, time off work for ante-natal and adoption appointments, and flexibleworking. The sections relate to non-devolved matters and so apply to Wales.

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COMMENTARY ON SECTIONS

Part 1: ADOPTION AND CONTACT

Adoption

Section 1: Contact between prescribed persons and adopted person’s relatives

51. This section amends section 98(1) of the Adoption and Children Act 2002 (“the 2002Act”). Section 98(1) of the 2002 Act allows regulations to be made to facilitate contactbetween persons adopted before 30 December 2005 (when the 2002 Act came intoforce) and their birth relatives, Section 1 extends this regulation making power sothat regulations can also make provision to facilitate contact between persons with aprescribed relationship to a person adopted before 30 December 2005 and the adoptedperson’s birth relatives.

52. Persons prescribed under these regulations will include the direct line of descendantsof the adopted person (i.e. children, grandchildren) but the Department for Educationintends to consult on whether it is appropriate for others, such as spouses and siblingsof descendants, to be able to access the same services.

Section 2: Placement of looked after children with prospective adopters

53. This section amends section 22C of the Children Act 1989 as it applies in relation toEngland. New subsection (9A) imposes a duty on a local authority looking after a child,when they are considering adoption for the child, or are satisfied that the child ought tobe placed for adoption but are not authorised to place that child for adoption, to considerplacing the child in a “Fostering for Adoption” placement.

54. A “Fostering for Adoption” placement is a foster placement with foster parents whoare also approved prospective adopters, in circumstances where the local authorityare considering adoption as an option for the child’s long term care (whether it isthe only option they are considering, or one of several) or are satisfied that the childought to be placed for adoption but do not yet have authorisation to place the child foradoption. In these circumstances the local authority will be under a duty to consider a“Fostering for Adoption” placement. Section 22C(5) of the Act will apply, and requiresthe local authority to place the child in “the most appropriate placement available”,and section 22 of the Act will apply in relation to the decision about which placementis most appropriate, and will require the authority to act in the child’s best interests.The local authority must first have considered placing the child with relatives, friendsor other connected persons and have ruled them out as not being the most appropriatepotential carers for the child.

Section 3: Repeal of requirement to give due consideration to ethnicity: England

55. This section amends section 1 of the 2002 Act so that subsection (5) does not applyin relation to local authorities in, and registered adoption societies whose principaloffice is in, England. Section 1(5) of that Act requires adoption agencies to give dueconsideration to a child’s religious persuasion, racial origin and cultural and linguisticbackground when placing him or her for adoption.

56. Adoption agencies are required by section 1(2) and (4) of that Act to make a child’swelfare throughout his or her life their paramount consideration, and to have regardto a range of matters, including the child’s needs, wishes and feelings, and his or herbackground and other relevant characteristics, in reaching a placement decision. Theseprovisions, therefore, mean that the adoption agency is already and will remain undera duty to have regard to the child’s religious persuasion, racial origin and cultural andlinguistic background, amongst other factors, where relevant. An adoption agency isalso required by section 1(3) of that Act to bear in mind that any delay in coming to adecision is likely to prejudice the child’s welfare.

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57. The amendment to subsection (5) is intended to avoid any suggestion that the currentlegislation places a child’s religious persuasion, racial origin and cultural and linguisticbackground above the factors in section 1(2) to (4).

Section 4: Recruitment, assessment and approval of prospective adopters

58. This section inserts a new section 3A into the 2002 Act. Section 3 of that Act requireseach local authority to maintain within their area an adoption service designed tomeet the needs, in relation to adoption, of, and provide facilities for: children whomay be adopted; their parents and guardians; persons wishing to adopt a child; andadopted persons, their parents, natural parents and former guardians. Local authoritiesmay provide those facilities by securing their provision by other local authorities andregistered adoption societies (defined in section 2(2) of the 2002 Act). Only localauthorities and registered adoption societies may make arrangements for adoption(sections 92 and 94 of the 2002 Act).

59. The new section 3A provides a new power for the Secretary of State to direct one ormore named local authorities in England, or one or more descriptions of local authorityin England, to make arrangements for all or any of their functions in relation to therecruitment of persons as prospective adopters; the assessment of prospective adopters’suitability to adopt a child; and the approval of prospective adopters as suitable to adopta child, to be carried out on their behalf by one or more other adoption agencies (otherlocal authorities or voluntary adoption agencies).

60. The new section 3A also provides a new power for the Secretary of State to require,by order, all local authorities in England to make arrangements for all or any oftheir functions in relation to the recruitment of persons as prospective adopters; theassessment of prospective adopters’ suitability to adopt a child; and the approval ofprospective adopters as suitable to adopt a child, to be carried out on their behalf by oneor more other adoption agencies (other local authorities or voluntary adoption agencies).Such an order is subject to the affirmative resolution procedure and cannot be madebefore 1 March 2015.

Section 5: Adoption support services: personal budgets

61. This section inserts a new section 4A into the 2002 Act to make provision enablinglocal authorities to prepare personal budgets for adoption support services. A personalbudget is an amount to be made available to secure particular adoption support servicesand provides a way of involving an adopted person or the parent of an adopted person(“the recipient”) in securing those services.

62. Personal budgets may take the form of direct payments, where families can purchasethe services themselves, notional personal budgets, which families can prepare with thelocal authority and which the local authority can spend on their behalf at their direction,or a combination of both.

63. Section 4A(2) requires local authorities to prepare a personal budget with respect toadoption support services for a recipient upon request. This only applies where the localauthority has, following an assessment under section 4 of the 2002 Act, decided toprovide adoption support services (subsection (1)(a)).

64. The local authority prepare a personal budget where they identify an amount asavailable to secure the adoption support services that they have decided to provide, witha view to the recipient being involved in securing those services (section 4A(3)).

65. Section 4A(4) enables regulations to be made to make detailed provision about personalbudgets, including for direct payments to be made to the recipient in order for therecipient to secure the service, the provision of information, support and advice inconnection with personal budgets and direct payments, and when, to whom and onwhat conditions direct payments may or may not be made. The first set of regulations

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made under section 4A(4) will be subject to the affirmative resolution procedure(section 4A(7)).

66. If regulations authorise direct payments to be made to an adoptive parent or an adoptedchild they must require them to consent before the direct payment can be made. Theymust also require local authorities to stop making direct payments where that consentis withdrawn (section 4A(5)).

67. Any adoption support services that are secured by means of direct payments will betreated as adoption support services provided by the local authority (section 4A(6)).

Section 6: Adoption support services: duty to provide information

68. This section inserts a new section 4B into the 2002 Act.

69. Section 4B(1) places a new duty on local authorities in England to provide a range ofinformation about adoption support services and other prescribed information to anyperson who has contacted the local authority to request information about adoptinga child, or has informed the local authority that they wish to adopt a child. Localauthorities must also provide such information to any person within their area who theyare aware is the parent of an adopted child or to any such person upon request. Thissubsection also makes provision for regulations to prescribe the circumstances in whicha local authority does not need to provide the information.

70. Section 4B(2) sets out the information that the local authority must provide includinginformation about the adoption support services available in their area and informationabout assessments for adoption support services. It also makes provision for regulationsto prescribe other information that must be provided by the local authority.

Section 7 and Schedule 1: The Adoption and Children Act Register

71. This section amends the provisions in the 2002 Act that provide for the establishment ofan Adoption and Children Act Register (“the register”) of children suitable for adoptionand prospective adopters who are suitable to adopt a child.

72. Subsection (2) amends section 125(1)(a) of the 2002 Act to allow for the inclusionin the register of prescribed information about children who are being considered foradoption by an English local authority. This is intended to enable details of lookedafter children to be included in the register where the local authority are consideringadoption as an option for them, or they are satisfied that the child ought to be placed foradoption but they are not authorised to do so either by parental consent or a placementorder. These children may be placed with local authority foster parents who are alsoapproved prospective adopters under new section 22C(9A) of the Children Act 1989(see section 2). This subsection also amends section 125(3) of the 2002 Act to removeany doubt that the restriction is subject to regulations made under section 128A (asinserted by subsection (4)).

73. A new section 125(1A) is inserted into the 2002 Act to provide that regulationsmay enable the register to contain prescribed information about children that Welsh,Scottish or Northern Irish adoption agencies are satisfied are suitable for adoption andprospective adopters that they are satisfied are suitable to adopt a child (paragraph 2(3)of Schedule 1).

74. Subsection (3) amends section 128(4)(b) of the 2002 Act to provide that consent needsto be given by a prescribed person if information about a child who is being consideredfor adoption by an English local authority is to be disclosed to the Secretary of Stateor the registration organisation.

75. Subsection (4) inserts a new section 128A into the 2002 Act, which provides forregulations to allow for the search and inspection of the register by prospective adopterswho are suitable to adopt a child to enable them to identify a child on the register for

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whom they might be appropriate adopters. A prospective adopter is suitable to adopt achild if an adoption agency is satisfied that they are suitable to have a child placed withthem for adoption (section 131(2)(b)). The regulations may restrict access to certainparts of the register only, or only to specified content on the register (subsection (2) ofsection 128A) and the regulations may also set out terms and conditions of access to theregister (subsection (3) of section 128A). Subsection (4) of section 128A provides thatregulations may prescribe the steps that prospective adopters must follow in relationto the information they have received through their search of the register. Subsection(5) of section 128A provides that the regulations may prescribe the payment of a feeto the Secretary of State or the registration organisation by the prospective adoptersfor the searching or inspecting of the register. The first set of regulations made undersection 128A will be subject to the affirmative resolution procedure (subsection (6) ofsection 128A).

76. Section 129(1) of the 2002 Act is amended to provide that information entered in theregister, or compiled from information entered in the register, may also be disclosedunder the regulations made under section 128A of the 2002 Act (paragraph 6 ofSchedule 1). Paragraph 6 of Schedule 1 inserts a new section 129(2A) which providesfor regulations to permit the disclosure of prescribed information entered in the registeror compiled from information entered in the register to adoption agencies in England,Wales, Scotland and Northern Ireland and to the registers in Scotland, Wales andNorthern Ireland. Section 129(4) is amended to provide that regulations may prescribethe steps to be taken by adoption agencies in respect of information disclosed to themunder new section 129(2A) and section 129(7) is amended to provide that regulationsmay require Welsh, Scottish or Northern Irish adoption agencies, as well as adoptionagencies in England, to pay a prescribed fee in prescribed circumstances and to providethat the regulations may require any person to whom information is disclosed undernew section 129(2A) to pay a prescribed fee.

77. Subsection (5) amends section 129(2)(a) to provide that prescribed information enteredin the register may be disclosed where an adoption agency in England is acting on behalfof a child for whom they are considering adoption.

78. Subsection (6) amends section 140(7) to provide that subordinate legislation madeunder the 2002 Act may make different provision for different areas. This will enablethe regulations made under section 128A to apply in certain local authority areas only.

79. Subsection (7) inserts a new subsection (6A) into section 97 of the Children Act 1989to provide that entering information on the register under section 125 of the 2002Act or accessing information, in accordance with any regulations made under the newsection 128A of the 2002 Act, would not be an offence under section 97 of the 1989 Act.

80. Subsection (8) introduces Schedule 1 which amends the 2002 Act to provide for theremoval of the requirement to make provision for the register by Order in Council, andfor that register not to apply to Wales or Scotland.

Contact

Section 8: Contact: children in care of local authorities

81. Section 34 of the Children Act 1989 provides that where a child is in the care of the localauthority the authority must allow the child reasonable contact with their parents orguardians, or certain other persons specified in section 34(1). Local authorities are alsorequired, under paragraph 15 of Schedule 2 to that Act, to endeavour to promote contactbetween all looked after children and those persons listed in paragraph 15(1), includingthe child’s parents and other relatives of the child, like grandparents or siblings. Thissection makes amendments to both of these provisions.

82. Subsection (2) amends section 34(1) to make it clear that the local authority’s duty toallow reasonable contact between a child in the care of the local authority and those

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people listed in section 34(1)(a) to (d) is subject to the local authority’s duty to safeguardand promote the welfare of looked after children under section 22(3)(a) of the ChildrenAct 1989. If allowing contact with any of those persons would not safeguard andpromote the welfare of the child, the local authority should not allow the contact.

83. Subsection (4) enables the Secretary of State to make secondary legislation setting outin more detail the matters that the local authority should consider when determiningwhether contact between the child and any of the people mentioned in section 34(1) isconsistent with safeguarding and promoting the child’s welfare.

84. Subsection (3) inserts a new subsection (6A) into section 34 to provide that where a localauthority in England is refusing contact under section 34(6) with any of the personslisted in section 34(1)(a) to (d), or where a local authority has obtained a court orderunder section 34(4) authorising them to refuse contact with any of those persons, theduty in paragraph 15(1) of Schedule 2 no longer applies.

85. Section 34(11) provides that before making a care order with respect to any childthe court has to consider the contact arrangements that the local authority has madeor proposes to make and invite the parties to the proceedings to comment on thosearrangements. Subsection (5) amends that subsection to provide that the court’s dutiesalso apply before the court makes, varies or discharges an order under section 34.

Section 9: Contact: post-adoption

86. This section inserts new sections 51A and 51B into the 2002 Act which provide for themaking of orders which deal with contact arrangements at the adoption order stage andsubsequently between an adopted child and those persons listed in section 51A(3).

87. Section 51A provides that orders under that section can only be made where an adoptionagency has placed or was authorised to place a child for adoption and the court ismaking, or has made an adoption order.

88. When making the adoption order or at any time afterwards the court may either makean order for contact under section 51A(2)(a) or an order prohibiting contact undersection 51A(2)(b). The court may also, when making an adoption order, make an orderunder section 51A(2)(b) prohibiting contact on its own initiative (section 51A(6)).

89. Section 51A(3) prescribes the persons that may be made subject to an order undersection 51A. These include former relatives and guardians of the child, amongst others,as well as any person who has lived with the child for at least one year. Section 51A(7)provides that the one year period need not have been continuous but must not havestarted more than five years before the application for an order under section 51A wasmade.

90. Under section 51A(4) the child, the person who has applied for the adoption order orthe child’s adoptive parents may make an application for an order under section 51Awithout the permission of the court. Any other person may apply for an order if theyhave obtained the permission of the court to do so.

91. Section 51A(5) sets out the factors that the court must consider when deciding whetherto grant permission, under subsection (4)(c), to apply for an order. It provides that thecourt must consider the possible harm that might be caused to the child by the proposedapplication, the applicant’s connection to the child, and any representations that aremade to them by the child, the person who has applied for the adoption order or thechild’s adoptive parents.

92. Section 51A(8) provides that where section 51A applies, an order under section 8 ofthe Children Act 1989 may not provide for contact between the child and anyone whomight be named in a section 51A order. Section 26(5) of the 2002 Act is also repealed(by subsection (3)) to ensure that no application for a contact order under section 8 of

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the Children Act 1989 may be made at the same time as an application for an adoptionorder.

93. An order under section 51A may contain directions on how it will be carried into effect,be made subject to appropriate conditions, be varied or revoked following an applicationby the child, the adoptive parents or the person named in the order under section 51Aand has effect until the child’s 18th birthday (section 51B(1)).

94. Section 51B(4) sets out what rules of court may specify and section 51B(3) provides thatthe court must, in the light of any rules made, draw up a timetable in relation to ordersunder section 51A and give directions for ensuring, so far as is reasonably practicable,that any timetable is adhered to.

95. Section 1(7) of the 2002 Act is amended to provide that it applies to orders made undersection 51A (subsection (2)). This means that the requirements of section 1(2) to (4)of that Act, for example, that the welfare of the child must be the court’s paramountconsideration, apply when the court is considering making an order under section 51A.

96. Section 96(3) of the 2002 Act is amended to provide that it is not an offence undersection 95 of that Act (which prohibits certain payments relating to adoption) tomake payments for legal and/or medical expenses in relation to an application for asection 51A order (subsection (4)).

97. Section 1(1) of the Family Law Act 1986 (“the 1986 Act”) is amended to ensurethat a section 51A order is classed as a “Part 1 Order” for the purposes of Part 1of that Act (subsection (5)). This enables section 51A orders to be recognised andenforced throughout the UK. Section 2 of the 1986 Act is amended to provide for thecircumstances in which a court in England and Wales shall have jurisdiction to makean order under section 51A of the 2002 Act (subsection (6)).

98. Section 9 of the Children Act 1989 is amended to provide that a court must not makea specific issue or prohibited steps order when the same result could be achieved bymaking an order under section 51A (subsection (7)). This makes the position withregards to orders under section 51A consistent with the previous position in relation toresidence and contact orders.

99. A number of sections of the Armed Forces Act 1991 (“the 1991 Act”) are amended toadd references to any person in whose favour an order under section 51A of the 2002Act is in force with respect to the child, alongside references to any person named ina child arrangements order which regulates contact (under section 8 of the 1989 Act)(subsections (8), (9), (10) and (11)).

100. Paragraphs 12(9)(p) and 13(1)(g) of Part 1 of Schedule 1 to the Legal Aid, Sentencingand Punishment of Offenders Act 2012 are amended to ensure that adoption relatedcontact orders under section 51A of the 2002 Act are within the scope of civil legal aidin the same way as orders under section 8 of the Children Act 1989.

Part 2 – FAMILY JUSTICE

Section 10: Family mediation information and assessment meetings

101. Subsection (1) provides that any person who wishes to make a relevant familyapplication must first attend a family mediation information and assessment meeting (a“MIAM”) to find out about and consider mediation, or other forms of non-court baseddispute resolution. Subsection (1) does not make a distinction between applicants whoare publicly funded and applicants who are not.

102. Subsection (2) enables provision to be made in Family Procedure Rules for how therequirement in subsection (1) is to work in practice. This may include provision:

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• Setting out circumstances in which the requirement to attend a MIAMbefore making an application to court will not apply (subsection (2)(a)). Forexample, Family Procedure Rules may provide that the requirement to attend willnot apply in cases where the application is urgent or where a MIAM cannot bearranged within a specified time, or where there is evidence of domestic violence.

• About how attendance at a MIAM is arranged and how a MIAM is to be conducted(subsection (2)(b)).

• For the court to refuse to issue or otherwise deal with an application if therequirement to attend a MIAM should have, but has not, been complied with(subsection (2)(c)).

• About the evidence which is to be considered when determining whether therequirement to attend a MIAM applies and, if so, whether it has been complied with(subsection (2)(d)).

103. Subsection (3) defines various terms used in subsections (1) and (2). For example,it provides that a “relevant family application” is an application made in familyproceedings that is of a description specified in Family Procedure Rules. TheGovernment invited the Family Procedure Rule Committee to make provision inprospective Family Procedure Rules for the types of proceedings to which the MIAMrequirement should apply. For example, that the requirement to attend a MIAMwill apply (unless an exemption applies) in relation to an application for a childarrangements order. The FPRC is considering prospective draft rules.

104. Subsection (4) makes it clear that the powers in the section to make provision inFamily Procedure Rules have no limiting effect on sections 75 and 76 of the Court Act2003 (which provide the general power to make Family Procedure Rules, being rulesregulating practice and procedure in family proceedings).

Section 11: Welfare of the child: parental involvement

105. The purpose of this amendment to section 1 of the Children Act 1989 is to reinforce theimportance of children having an ongoing relationship with both parents after familyseparation, where that is safe and in the child's best interests. The new subsection (2B)of section 1 is explicit that it is not the purpose of this amendment to promote the equaldivision of a child’s time between separated parents. The effect is to require the court, inmaking decisions on contested section 8 orders, the contested variation or discharge ofsuch orders or the award or removal of parental responsibility, to presume that a child’swelfare will be furthered by the involvement of each of the child’s parents in his or herlife, unless it can be shown that such involvement would not in fact further the child’swelfare. Involvement means any kind of direct or indirect involvement but not anyparticular division of the child’s time. . (A “section 8 order” is one of the orders definedby section 8 of the Children Act 1989 - child arrangements orders (which replace contactorders and residence orders), prohibited steps orders and specific issue orders.)

106. The presumption can only apply in the case of a parent falling within the newsection 1(6)(a) of the Children Act 1989. A parent falls within section 1(6)(a) if thatparent can be involved in the child’s life in a way that does not put the child at riskof suffering harm. A parent is to be treated (by virtue of the new section 1(6)(b)) assomeone whose involvement will not give rise to a risk of harm to the child unless thecourt has evidence before it that involvement of that person would give rise to such arisk, whatever the form of the involvement.

107. If a parent can be involved in the child’s life in a way that does not put the child at riskof suffering harm (whether that be through direct, indirect or supervised contact) thepresumption applies to that parent and the court must then go on to consider whetherthe presumption is rebutted on the basis that it is shown that the involvement of thatparent would not in fact further the child’s welfare.

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108. Therefore, even where a parent can be involved without posing a risk of harm to thechild, the presumption will be rebutted if the court believes that the parent's involvementis not consistent with the child's welfare.

109. In a case where the presumption stands in respect of either or both of the child’sparents, the court will be required to presume that the child’s welfare will be furtheredby the involvement of that parent (or those parents) in the child’s life. This willbe a consideration for the court to weigh in the balance when deciding whether tomake an order (and if so what order to make) in a particular case, along with theother considerations in section 1 of the Children Act 1989, subject to the overridingrequirement that the child’s welfare remains the court’s paramount consideration.

110. A process map and examples are set out at Annex A in order to further explain how thepresumption is expected to fit with the decision making process.

Section 12: Child arrangements orders

111. Subsection (2) removes the definitions in section 8(1) of the Children Act 1989 of aresidence order and a contact order. These orders are replaced by a child arrangementsorder, in line with the recommendation made by the Family Justice Review.

112. Subsection (3) inserts into section 8(1) of the Children Act 1989 the definition ofthe new child arrangements order. A child arrangements order is an order regulatingarrangements relating to with whom a child should live, spend time, or have other typesof contact, or when they should do so. The “other types of contact” a child arrangementsorder may provide for could include indirect contact such as a telephone call by theparent. As previously, specific matters which arise in connection with the exercise ofparental responsibility for a child (including matters giving rise to a need to limit theexercise of that parental responsibility), and that do not relate to who the child shouldlive with or have contact with, will be dealt with by means of a specific issue orderor a prohibited steps order (as defined in section 8(1) of the Children Act 1989) asappropriate.

113. Entitlement to apply for a child arrangements order in general mirrors the previousentitlement in respect of section 8 orders. But there is one extension of that entitlement,which arises as a result of consequential amendments to sections 10 and 12 of theChildren Act 1989, detailed further below.

Schedule 2 – Child arrangements orders: amendments

114. Schedule 2 consists of two Parts, each containing amendments to legislation that relateto section 12 (child arrangements orders) and, in particular, the replacement of the“residence order” and the “contact order” by the child arrangements order. In addition,certain of these amendments reflect a shift in focus in order to achieve a particularpolicy aim. For those provisions where this is the case, a more detailed explanation isprovided below.

115. Many of these amendments are those which replace the words “residence order” or“contact order” with “child arrangements order”. For many of those provisions whichpreviously referred either to residence or contact orders, the distinction remains, butthe language now reflects that the order in question will be a specific type of childarrangements order.

116. Whilst the name of the order in question will change, the rights that flow from theorder will remain. If, for example, the order provides that a child shall live with aparticular person, that person (or others seeking confirmation that the child lives withthat person), can rely on that child arrangements order as confirmation that the childshould be living with that person, in the same way as was previously the case in relationto a residence order. The content of the order will set out with whom the child is to live.From an international perspective, it is the content of an order rather than the name of the

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order that is important. A child arrangements order which regulates arrangements aboutwhom the child concerned is to live with will operate in the same way as a residenceorder does at present. Parental responsibility that results from the making of such anorder will remain.

Schedule 2, Part 1: Amendments of the Children Act 1989

117. Part 1 of Schedule 2 contains the amendments to the Children Act 1989 that relate tosection 12 (child arrangements orders). Several amendments to the Children Act 1989have the aim of replicating, in so far as possible, the current position as regards residenceorders and contact orders. However, some amendments have required additionalprovisions to be inserted into sections in that Act or an alteration to the focus of suchsections. This is to ensure that the amendments reflect the policy aim of moving awayfrom terminology that implies that there is a winner or loser in disputes concerningchildren (the perception often being that the parent with residence is the winner whilethe parent with contact is the loser). Where more detailed amendments have beenrequired, further explanation is provided below.

118. Of particular note in this regard are the amendments made by paragraphs 7 to 11 ofSchedule 2 which amend sections 11A to 11E of the Children Act 1989. Sections 11Ato 11E relate to “contact activity directions”, which are directions that the court is ableto make where it is considering making provision about contact, and “contact activityconditions”, which can be imposed in a contact order. Contact activity directions andcontact activity conditions have the aim of promoting contact. The amendments tosections 11A to 11E mean that the activities directed or imposed are able to relate tomore than just promoting the contact provided for in the child arrangements order (orprovision about contact which the court is considering). Instead the activities directedor imposed will be about helping to establish, maintain or improve the involvement ofa person in a child’s life. As such, these directions and conditions will no longer bereferred to as “contact activity directions” or “contact activity conditions”, but will be“activity directions” and “activity conditions”.

119. The shift in focus here is to recognise that where the child lives with more than oneperson or lives with one person and spends time or otherwise has contact with anotherperson, there may be issues that relate to the time spent by the child with the personwith whom he or she lives, that affect the smooth operation of the arrangements for thecare of the child. In such circumstances, these issues could be addressed by an activitydirection or condition.

120. In addition, various amendments in Schedule 2 mean that the court will be able to makeactivity directions when it is considering whether a person has failed to comply with aprovision of a child arrangements order, or what steps to take in consequence of sucha failure, but where the court is not considering whether to vary or revoke the childarrangements order itself. These amendments will ensure that where there is an allegedor actual failure to comply with a child arrangements order, the court can considerwhether it would help in resolving any dispute to require one or more of the adultsinvolved to attend an activity such as a parenting information programme.

121. Sections 11F and 11G of the Children Act 1989 are supplementary to sections 11A to11E. Sections 11H to 11P make provision as to the enforcement of contact orders andthe payment of compensation where one person is in breach of an order and the otherperson suffers financial loss. Amendments made to these sections are to ensure thatwhere a child arrangements order is in force with respect to a child and the provisionssetting out the living arrangements (not just arrangements about contact) are sufficientlyprecise so that it is clear when a person is in breach of the order, the sanctions currentlyavailable to the court by virtue of sections 11H to 11P are available for breaches of achild arrangements order by any person who the child is to live with.

122. Paragraph 21 amends section 12 of the Children Act 1989 and relates to the entitlementto parental responsibility as a result of being named in a child arrangements order. New

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subsection (1A) gives the court the power to give parental responsibility to the child’sfather or second female parent (by virtue of section 43 of the Human Fertilisation andEmbryology Act 2008) in cases where the father (or second female parent) is named inthe order as a person with whom the child is to spend time or otherwise have contact.

123. New subsection (2A) enables the court to give parental responsibility to a person whois not a child’s parent or guardian, in cases where a child arrangements order providesfor the child concerned to spend time with or otherwise have contact (but not live) withthat person. As for subsection 12(2), parental responsibility is limited to the durationof the relevant provision.

124. As a result of new section 12(2A) and new section 10(5)(d) the entitlement to apply fora child arrangements order will be extended. New paragraph (d) of section 10(5) of theChildren Act 1989 (see paragraph 5(3)(c) of Schedule 2) provides that a person whohas parental responsibility by virtue of provision under new section 12(2A) is entitled toapply for a child arrangements order. The Government considers that the extension ofentitlement that would be effected by new section 10(5)(d) is narrow because there arelikely to be only a few cases in which the court considers it appropriate to give parentalresponsibility to a person with whom a child spends time or otherwise has contact butdoes not live.

125. Section 14 of the Children Act 1989, which relates to measures for the enforcement ofresidence orders under section 63(3) of the Magistrates’ Courts Act 1980, is repealed byparagraph 23. No equivalent is needed because the enforcement powers of the familycourt established by the Crime and Courts Act 2013 are sufficient.

Schedule 2, Part 2 – Child arrangements order – amendments in other legislation

126. Part 2 of Schedule 2 contains amendments to legislation other than the Children Act1989 that relate to section 12 (child arrangements orders). Many of these amendmentsreplace references to a “residence order” or “contact order” with a references to a “childarrangements order”, and all are made either with the intention of preserving the originalpolicy effect of the legislation concerned, or to reflect the new intentions referred toabove (for example, in relation to the ability to make activity directions where there hasbeen an alleged or actual failure to comply with a provision of a child arrangementsorder).

Section 13: Control of expert evidence, and of assessments, in children proceedings

127. This section makes provision about when expert evidence may be sought or put beforethe court in children proceedings. It is intended that, in so far as children proceedingsare concerned, these measures will replace similar provisions which are contained inthe new Part 25 of the Family Procedure Rules 2010 which is inserted into the 2010Rules by the Family Procedure (Amendment) (No.5) Rules 2012 S.I. 2012/3061 andcame into force on 31 January 2013. The new Part 25 is largely a consolidation of newand old rules relating to the control of expert evidence.

128. Subsection (1) requires that any person wishing to instruct an expert to provide evidencefor use in children proceedings must first seek the permission of the court to do so;subsection (3) similarly requires the court’s permission for a child to be medicallyor psychiatrically examined or otherwise assessed by an expert for the purpose ofpreparing expert evidence for the court; and subsection (5) likewise requires the court’spermission for expert evidence, whether in the form of a written report or oral evidence,to be put before the court. Similar restrictions are well established in court rules and arenow all set out in Part 25 of the Family Procedure Rules.

129. Subsections (2) and (4) provide for what is to happen where an expert is instructed ora child medically or psychiatrically examined or otherwise assessed to provide expertevidence for use in children proceedings without first obtaining the court’s permission.In these circumstances evidence resulting from the instructions or examination or

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assessment is inadmissible in children proceedings unless the court rules that it isadmissible.

130. Subsection (6) sets out the test for permission. The court will only be able to givepermission as mentioned in subsections (1), (3) and (5) if it is satisfied that the expertevidence is necessary to assist the court in resolving the proceedings justly. In reachingthat decision, the court has to consider the factors specified in subsection (7), and anyadditional factors which may be prescribed by way of Family Procedure Rules. Thefactors have the effect, among other things, that the court will need to consider how thechild might be affected if it is likely that the instruction of an expert would lengthenthe timetable for the proceedings.

131. Subsection (8) excludes certain types of evidence from the ambit of expert evidence sothey are not subject to the restrictions set out in the section. These include any evidencegiven by a person who is a member of staff of a local authority or of an authorisedapplicant. The purpose is to ensure, for example, that local authority social workers arenot captured within the definition of expert evidence and permission is not requiredbefore they can provide a report or give evidence. Similarly, evidence given by officersof the Children and Family Court Advisory and Support Service (Cafcass) or CafcassCymru, and any evidence provided in connection with determining the suitability of achild for adoption, is not expert evidence and will not be subject to these restrictions.

132. Subsection (9) enables “children proceedings” to be defined in the Family ProcedureRules for the purposes of the section.

133. Subsection (10) is intended to ensure that any other matter relating to experts in childrenproceedings can continue to be determined by the Family Procedure Rules.

134. Subsection (11) amends section 38 of the Children Act 1989, which enables the courtto give such directions as it considers appropriate relating to the medical or psychiatricexamination or other assessment of the child when making an interim care order oran interim supervision order (section 38(6)). The new subsections (7A) and (7B) alignsection 38 with the new test for permission for expert evidence in children proceedings(as provided for in the previous provisions of section 14) so that the court may onlymake a direction for such an examination or assessment to be undertaken if it issatisfied that it is necessary to assist the court to resolve the proceedings justly (newsubsection 7A). In reaching a decision, the court must consider a number of factorsmirroring those in subsection (7) of the section (new subsection (7B)).

Section 14: Care, supervision and other family proceedings: time limits andtimetables

135. Subsection (2) amends section 32(1) of the Children Act 1989, which relates to thetimetabling of proceedings on an application for a care or a supervision order, to requirethe court to timetable care and supervision cases with a view to concluding them withoutdelay and, in any event, within 26 weeks of an application being issued.

136. Subsection (3) inserts a series of new subsections into section 32. New subsections (3)and (4) require that particular regard is had by the court to the impact of the timetableon the welfare of the child when drawing up the timetable for a case, revising thattimetable, or making any decision (excluding an extension under new subsection (5),dealt with below) which may give rise to a revision of the timetable. The starting pointfor the court when timetabling cases should always be that the proceedings should bedisposed of without delay, and in any event within the applicable period, which will be26 weeks in the absence of an extension.

137. New subsection (5) of section 32 allows the court to extend the maximum case durationto be observed when timetabling an application beyond the 26 week time limit, orbeyond the end of any previous extension, only if the court considers that an extension(or further extension) is necessary to enable it to resolve the proceedings justly. A

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decision to extend the maximum case duration to be observed when timetabling theapplication will in almost every case be followed by a revision of the timetable for thecase to take advantage of the extension, for example, by relisting the date of a hearing.When deciding whether to extend time, the court must have particular regard to theimpact which any ensuing revision of the timetable would have on the welfare of thechild to whom the application relates, or on the duration and conduct of the proceedings.

138. New subsection (7) of section 32 highlights, by way of guidance, that extensions shouldnot be granted routinely, and should be seen as requiring specific justification.

139. The factors which may be relevant when the court is considering whether to extendtime beyond 26 weeks, or beyond the end of a previous extension may include, forexample, the disability or other impairment of a person involved in the proceedings, ifthat means that their involvement in the case requires more time than it otherwise would,or external factors beyond the court’s control, such as parallel criminal proceedings, ifthat is relevant to the case.

140. New subsection (8) of section 32 provides that each separate extension of time madeunder subsection (5) is to last no more than 8 weeks (even where an extension is grantedafter the expiry of the period being extended).

141. New subsection (9) of section 32 gives the Lord Chancellor power by makingregulations to vary the 26 week time limit or the 8 week time limit for extensions. Suchregulations would be subject to the affirmative procedure by virtue of amendmentscontained in section 16(1).

142. New subsection (10) of section 32 provides for rules of court (Family Procedure Rules)to be able to make certain provision relating to the matters to which the court shouldhave regard when deciding whether to extend the time limit to be observed whentimetabling for disposal of an application.

143. Subsection (4)(a) removes the limits on the duration of interim care orders (ICOs) andinterim supervision orders (ISOs) set out in section 38 of the Children Act 1989 (8weeks for initial orders and 4 weeks for any subsequent orders). Instead the judge willbe able to set the length of ICOs and ISOs for a period which is considered appropriatein the particular circumstances of the case, although no ICO or ISO can endure beyondthe cessation of the proceedings themselves. Should an ICO or an ISO expire beforethe proceedings have been resolved, the court will be able to make a further order.

144. It is expected that when making an ICO or ISO it will usually be appropriate to alignthe duration of the ICO or ISO with the timetable for the proceedings (including anyextensions that may have been granted), to avoid the need for the court to make multipleICOs or ISOs within proceedings.

145. Subsection (7) makes minor amendments to section 32(1) of the Children Act 1989.Subsection (7)(b) clarifies that a court is required to draw up a timetable in the light ofany provision in rules of court that is of the kind mentioned in subsection (2)(a) or (b)(whether or not the rules themselves are made by virtue of subsection (2)).

146. Subsection (5), (6) and (8) are consequential upon the change in wording containedwithin subsection (7).

Section 15: Care Plans

147. This section amends section 31 of the Children Act 1989 so as to focus the court’sconsideration, when making its decision as to whether to make a care order, on theprovisions of the care plan that set out the long term plan for the upbringing of thechild. Specifically, the court is to consider whether the local authority care plan is forthe child to live with a parent or any member or friend of the child’s family, or whetherthe child is to be adopted or placed in other long term care. These are referred to as the“permanence provisions” of the section 31A plan. The court is not required to consider

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the remainder of the section 31A plan (subject to section 34(11) which requires thecourt to consider the contact arrangements for the child), although the amendments donot prevent the court from doing so.

148. New subsection (3C) of section 31 provides that the Secretary of State may byregulations amend what is meant by the “permanence provisions”.

Section 16: Care proceedings and care plans: regulations: procedural requirements

149. This section is consequential on the previous two sections and provides that regulationsmade under either section 31(3C) (regulations about permanence provisions) or 32(9)(regulations amending time limits for disposal of care or supervision proceedings) ofthe Children Act 1989 are to be subject to an affirmative resolution procedure.

Section 17: Repeal of restrictions on divorce and dissolution etc where there arechildren

150. This section repeals section 41 of the Matrimonial Causes Act 1973 and section 63 ofthe Civil Partnership Act 2004 which require the court to consider whether it shouldexercise any of its powers under the Children Act 1989 in proceedings for a decree ofdivorce, nullity of marriage, or judicial separation or, in relation to a civil partnership,for a dissolution, nullity or separation order. These sections apply where there arechildren under the age of 16 or where there are children who have reached the age of16 to whom the court directs that the provisions should apply.

151. Where there are disputes over children or financial issues, the parties are able tomake an application under the relevant section of the Children Act 1989 or theMatrimonial Causes Act 1973 (or the Civil Partnership Act 2004 for civil partnerships).Arrangements for children will no longer be scrutinised as part of the divorce processbut can instead be resolved through separate proceedings at any time.

152. Subsection (1) repeals the relevant sections of the 1973 and 2004 Acts and subsections(2) to (7) make consequential amendments and repeals in respect of provisions in theMatrimonial Causes Act 1973, the Children Act 1989 and the Civil Partnership Act2004.

Section 18: Repeal of uncommenced provisions of Part 2 of the Family Law Act1996

153. This section repeals uncommenced provisions of Part 2 of the Family Law Act 1996.The Family Law Act 1996 received Royal Assent on 4 July 1996. Part 2 of the 1996Act introduced revised divorce procedures and encouraged people to consider usingmediation to resolve disputes arising on divorce.

154. Subsection (1) repeals the uncommenced divorce provisions contained in Part 2 of theFamily Law Act 1996. Section 22 (funding of marriage support services) is in forceand is not being repealed.

155. Subsection (2) repeals various provisions of the Family Law Act 1996 which relateto the provisions of Part 2, including the general principle in section 1(c) relating tobringing marriage to an end with minimum distress to the parties and to encouragingfamily mediation. A range of non-statutory initiatives pre-court and at court have beenintroduced to promote and encourage consideration and use of mediation and these areaimed at all separating parents, whether or not the parents are married.

156. Subsection (3) makes consequential repeals of other legislation.

157. Subsections (4) and (5) make consequential amendments.

158. Subsections (6) and (7) turn modifications to statutory provisions, which were containedin commencement orders and were to have effect until such time as provisions of

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Part 2 of the Family Law Act 1996 came into force, into permanent amendments tothe modified provisions. For example, certain modifications to section 22(2) of theMatrimonial and Family Law Proceedings Act 1984 made by a commencement orderare to be made permanent.

159. Subsection (8) makes minor amendments to section 31(7D) of the Matrimonial CausesAct 1973 which is one of the provisions for which modifications are made permanentby subsection (7).

160. Subsection (9) defines the commencement orders referred to in this section and revokesthe provisions of these orders which contain the modifications to statutes which arebeing turned into permanent amendments by subsections (6) and (7) or which are nolonger needed.

PART 3 - children and young people in england with special Educational NeedsOR DISABILITIES

Local authority functions: general principles

Section 19: Local authority functions: Supporting and involving children andyoung people

161. This section sets out the general principles that local authorities must have regard toin exercising their powers and duties under Part 3 of the Act in the case of childrenand young people. The principles are based on the Government’s vision for reformingservices for children and young people with special educational needs, as set out in the2011 Green Paper, Support and Aspiration: A new approach to Special EducationalNeeds and Disability. They seek to ensure that local authorities place children, youngpeople and families at the centre of decision making, enable them to participate in afully informed way, and with a focus on achieving the best possible outcomes.

Special educational needs etc

Section 20: When a child or young person has special educational needs

162. A child or young person has special educational needs if they have a learning difficultyor disability which calls for special educational provision to be made for them.

163. Children and young people with special educational needs may require extra or differentprovision in relation to thinking and understanding, as a result of physical or sensorydifficulties, emotional or behavioural difficulties, difficulties with speech and languageor how they relate to and behave with other people. Disabled children and young peoplemay require extra or different provision, for example, if they are less mobile than theirpeers and require additional or extra provision so they can access the same learningopportunities.

164. A child or young person does not have a learning difficulty or disability simply becausethe language in which they are (or will be) taught is different from the one they speakat home.

165. This section replicates the current definition of special educational needs in section 312of the Education Act 1996 and the definition of a learning difficulty in section 15Z(6)and (7) of the Education Act 1996, applying a single definition to children and youngpeople from birth to 25.

166. Section 83 defines various terms:

• Young person is a person over compulsory school age1 but under 25.

1 Compulsory school age has the meaning given by section 8 of the Education Act 1996. A person begins to be of compulsoryschool age when he attains the age of 5 on 31st March, 31st August or 31st December in any year, or where he attains the age

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• Child is a person who is not over compulsory school age: see section 579 of theEducation Act 1996.

• Mainstream schools are maintained schools and Academy schools that are notspecial schools. A maintained school is a community, foundation or voluntaryschool, or a community or foundation special school not established in a hospital.

• Post-16 institution is any institution that provides education or training forthose over compulsory school age, but which is not a school or within thehigher education sector. Mainstream post-16 institutions are those which arenot specially organised to make special educational provision for students withspecial educational needs, that is, further education colleges, sixth form colleges,16-19 Academies and training providers. Special post-16 institutions are post-16institutions that are specially organised to make special educational provision forstudents with special educational needs. They are not within the further educationsector or 16-19 Academies and are currently often referred to as independentspecialist providers or independent specialist colleges.

Section 21: Special educational provision, health care provision and social careprovision

167. This section defines special educational provision, health care provision and social careprovision.

168. Special educational provision is additional or different from that which would normallybe provided for children or young people of the same age in mainstream schools orcolleges, maintained nursery schools and places at which relevant early years educationis provided. It might include support from a specialist teacher, access to a specialistteaching programme, specialist ICT equipment or a specialist job coach. For childrenunder two it means educational provision of any kind.

169. Health care provision means provision of health care services provided as part of theNHS. These services may be provided by or on behalf of NHS bodies including byprivate providers. Social care provision is provision made by local authority socialservices. Health care provision or social care provision which educates or trains thechild or young person is to be treated as special educational provision (rather than healthcare or social care provision). This reflects the precedents set by case law in relation tothe current special educational needs legislation.

170. The section replicates, and replaces in England, the current definition of specialeducational provision in section 312 of the Education Act 1996 and applies it to youngpeople over compulsory school age.

171. Relevant early years education is defined in the section as having the same meaning asunder section 123 of the Schools Standards and Framework Act 1998, that is, free earlyyears provision (as defined in section 20 of the Childcare Act 2006) which is providedunder arrangements made by a local authority pursuant to section 7 of the ChildcareAct 2006.

Identifying children and young people with special educational needs anddisabilities

Section 22: Identifying children and young people with special educational needsand disabilities

172. This section places a duty on local authorities to identify all those children and youngpeople in their area who have or may have special educational needs or disabilities.

of 5 on another date, he begins to be of compulsory school age on whichever of those dates comes next after his fifth birthday.He ceases to be of compulsory school age on the last Friday in June of the school year in which he attains the age of 16.

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Children and young people can be brought to the attention of the local authority bytheir parents, their school or college, or other professionals, for example a socialworker, General Practitioner, health visitor, teacher, early years professional or a furthereducation tutor.

173. This section is based on, but differs from, sections 13(5) and 321 of the EducationAct 1996 and will apply in England. The Education Act provisions will be repealed inrelation to England when these provisions come into force.

Section 23: Duty of health bodies to bring certain children to local authority’sattention

174. The section replicates section 332 of the Education Act 1996 and extends it to disabledchildren. Where a clinical commissioning group (CCG), NHS Trust or NHS FoundationTrust, in carrying out their functions in relation to a child under compulsory schoolage, are of the opinion that the child has or probably has special educational needs ora disability they must tell the child’s parents and give them the chance to discuss thiswith an officer of the group or trust. They must then tell the appropriate local authority.They must also tell the parent if they think a particular voluntary organisation is likelyto be able to give them advice or assistance in respect of their child’s special educationalneeds or disability. This section helps to ensure that young children who may needspecial educational provision or information and support in relation to a disability arebrought to the local authority’s attention early on.

Children and young people for whom a local authority is responsible

Section 24: When a local authority is responsible for a child or young person

175. This section specifies the children and young people for whom a local authority isresponsible for the purposes of Part 3 of the Act. These functions include identifyingand assessing a child or young person’s education, health and care needs and drawingup an EHC plan to meet them, and preparing a local offer of services that are availablefor children and young people with special educational needs and their families.

176. A local authority is responsible for a child or young person if he or she is in theauthority’s area and he or she has been identified by the authority or brought to itsattention as someone who has or may have special educational needs. This will coverchildren and young people who live in the authority’s area and are educated withinit and those who live in the authority’s area but who are educated outside its area.This would include, for example, children and young people with an EHC plan fromthe local authority’s area who the authority has placed in an independent school orpost-16 Independent Specialist College. This section allows anyone to bring a childto the attention of the local authority as having or possibly having special educationalneeds. Explicit rights for parents and young people and schools and colleges to requesta statutory assessment, carried forward from the present SEN system, are set out insection 36.

177. This section replaces, in England, section 321 of the Education Act 1996 andsection 139B(4) of the Learning and Skills Act 2000. Section 81 makes clear thatreferences in this Part to a child or young person who is in the area of a local authorityin England do not include a child or young person who is wholly or mainly resident inthe area of a local authority in Wales.

Education, health and care provision: integration and joint commissioning

Section 25: Promoting integration

178. Local authorities are required to carry out their functions under Part 3 in a waythat promotes integration between educational and training provision with health careprovision and social care provision where they consider that this would promote

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the well-being of children or young people who have special educational needs ora disability or where it would improve the quality of special educational provisionfor children and young people with special educational needs (as described insubsection (1)).

179. This section is intended to assist children and young people with educational, healthand social care needs by improving the way services work together to provide supportfor them.

180. This section reflects the duty placed on CCGs by section 14Z1 of the National HealthService Act 2006 (as inserted by section 26 of the Health and Social Care Act 2012)and the proposed duty on local authorities under clause 3 of the Care Bill which lookto improve integrated working between services.

Section 26: Joint commissioning arrangements

181. This section requires the local authority and its partner commissioning bodies to makearrangements about the education, health and care provision to be secured for childrenand young people with special educational needs for whom it is responsible and forthose with disabilities. Those must include arrangements for considering and agreeingthe education, health and care provision reasonably required by the learning difficultiesand disabilities which result in the children and young people for whom the authority isresponsible having special educational needs and by the disabilities of the children andyoung people in its area. It does not specify the form which the arrangements shouldtake as this should be agreed locally.

182. Commissioning Bodies are defined to include the NHS Commissioning Board as wellas the individual CCGs, so the arrangements may cover circumstances in which theBoard is responsible for commissioning services directly, such as low incidence/highneed specialist services, and for particular groups for whom it has commissioningresponsibility, such as the children of members of the armed forces. Each body whichis under a duty to arrange for the provision of services and facilities under the NationalHealth Service Act 2006 for children and young people for whom a local authorityis responsible will be a partner commissioning body of the authority. Subsection (9)provides a power to prescribe the circumstances in which a CCG is not to be treatedas a partner commissioning body.

183. The joint commissioning arrangements must include arrangements for the localauthority and commissioning bodies to consider and agree the special educational,health and social care provision required locally, and to determine what provision isto be secured and by whom, in order to meet that need. The arrangements must alsocover what information and advice is to be provided about education, health and careprovision, how it is to be provided, and how complaints about education, health and careprovision may be made and handled. In addition, the arrangements will also includeprocedures for resolving disputes between the partners.

184. The joint commissioning arrangements are also intended to help support otherprovisions. It is anticipated that the arrangements will help the local authority betterinform its local offer (see section 30), help those children and young people who havespecial educational, health and social care needs by ensuring that there are adequate and“joined up” assessments under section 36, help secure the provision included in EHCplans, and help in agreeing personal budgets for providing support (see section 49). Thelocal authority and its partner commissioning bodies are required to act consistentlywith the joint commissioning arrangements and to keep them under review so they canbe updated where necessary.

185. The duty under joint commissioning arrangements may be fulfilled by making use ofexisting local arrangements where they are used to meet the purposes set out underthis section. Such arrangements will include joint strategic needs assessments and jointhealth and wellbeing strategies developed pursuant to sections 116 and 116A of the

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Local Government and Public Involvement in Health Act 2007 (as amended by sections192 and 193 of the Health and Social Care Act 2012).

Review of education and care provision

Section 27: Duty to keep education and care provision under review

186. This section requires local authorities in England to keep under review the educationaland training provision and social care provision made in their area for children andyoung people with special educational needs or disabilities and the provision madeoutside their area for children and young people with special educational needs forwhom they are responsible and for those with disabilities.

187. Local authorities must consider the extent of provision and whether it is sufficient tomeet children and young people’s educational needs, training needs and social careneeds. This complements the local authority’s duties under section 14 and section 15ZAof the Education Act 1996 to secure sufficient schools and suitable education andtraining for young people.

188. When keeping their provision under review local authorities are required to consultwith children and young people with special educational needs and disabilities, parentsof children with special educational needs and disabilities, the bodies named insubsection (3) of the section and any other such people as the local authority thinksappropriate.

189. In carrying out their duties under this section local authorities must have regard to therelevant Joint Strategic Needs Assessment and Health and Well-being Strategy.

190. This section replaces section 315 of the Education Act 1996 in England and will operatealongside section 26 on joint commissioning to provide the local authority with relevantinformation with which to prepare the local offer.

Co-operation and assistance

Section 28: Co-operating generally: local authority functions

191. This section is a reciprocal duty of co-operation which requires local authorities andpartners (listed in subsection (2)) to co-operate with one another in the exercise of theauthority’s functions in this Part relating to children and young people with specialeducational needs.

192. The local authority must under subsection (3) ensure that there is co-operation betweenits officers involved in education and training and social services and any other officerswho assist children or young people to prepare for adulthood and independent livingas part of the local offer.

193. Subsection (4) provides a power to prescribe the circumstances in which a CCG is notto be treated as a partner of a local authority.

Section 29: Co-operating generally: governing body functions

194. This section complements the duty in section 28, and relates to the functionsof governing bodies, proprietors and management committees, rather than localauthorities. It requires co-operation between those institutions listed in subsection (2)and local authorities in the delivery of their duties set out in these provisions.

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Information and advice

Section 30: Local offer

195. This section requires local authorities to publish information about services they expectto be available for children and young people with special educational needs anddisabilities. This will be called the “local offer” and local authorities will keep theirlocal offer under review and revise it. The local offer must include information aboutthe provision the local authority expects to be available in its own area for childrenand young people with special educational needs and disabilities and outside its areafor those children and young people, regardless of whether or not they have EHCplans. Information about provision outside the local authority’s area could include, forexample, specialist provision located in a neighbouring authority but which is availableto children and young people in its area.

196. The local offer will cover special educational, health care and social care provision,other educational provision, training provision, provision to assist in preparing childrenand young people for adulthood and independent living (such as finding employmentor obtaining accommodation), arrangements for children and young people to travel toschools or post-16 education (including further education colleges, sixth form colleges,independent specialist providers and training providers) and providers of relevant earlyyears education.

197. Regulations will set out the information local authorities should include in their localoffer, how it is to be published, who is to be consulted in preparing it and how theauthority will involve children and young people with special educational needs anddisabilities and parents of children with special educational needs and disabilities inpreparing and reviewing it. This involvement will include publishing comments aboutthe local offer that have been received from or on behalf of those children and youngpeople and parents, and the authority’s responses to those comments, including anyaction it intends to take. Local authorities will also have to include information abouthow to seek an assessment for an EHC plan, about other sources of information, adviceand support, and about how to make a complaint about provision in the local offer.The regulations will also set out the extent of the information local authorities shouldinclude about provision outside their area. Local authorities will be free to includeother information in their local offer if they wish. This section on the local offerworks alongside section 27 which requires local authorities to keep their education andsocial care provision for children and young people with special educational needs anddisabilities under review, and also section 26 which requires local authorities to makejoint commissioning arrangements with partner clinical commissioning groups.

Section 31: Co-operating in specific cases: local authority functions

198. This section supplements the duties in section 28 and 29. It requires healthservice partners, other local authorities, the person in charge of any relevant youthaccommodation, and youth offending teams to co-operate when asked by a localauthority for help in carrying out its duties towards children and young people withspecial educational needs.

199. Requests for cooperation could be in relation to assessments of individual children’sspecial educational needs and preparation of EHC plans. Regulations may impose timelimits where a request to co-operate relates to local authority duties in these areas.

200. This section replaces, in England, section 322 of the Education Act 1996.

Section 32: Advice and information

201. This section requires local authorities to make arrangements for advice and informationabout special educational needs and disabilities to be provided for children, young

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people and the parents of children in its area with those needs, and to make the servicesprovided known to those people, schools, colleges and others they consider appropriate.

202. This section replaces and extends section 332A of the Education Act 1996 underwhich local authorities have provided parent partnership services which already provideinformation and advice to parents of children with special educational needs. Section332A related to children, parents and schools. The section extends the reach of theprovision in section 332A to children and young people with SEN, disabled childrenand their parents and disabled young people. It places a duty on local authorities tomake these provisions known to the head teachers, proprietors and principals of schoolsand post-16 institutions in their area. The local authority may also inform anyone elseit thinks is appropriate.

Mainstream education

Section 33: Children and young people with EHC plans

203. Section 33 sets out what action should be taken when a local authority is making anEHC plan for a child or young person with special educational needs who is to go toa school or college, where either:

• The child’s parents or the young person do not ask for a particular school or collegeto be named in the EHC plan in accordance with section 38; or

• The child’s parents or the young person do make a request, but the local authoritydoes not intend to name the requested provider.

204. It places a duty on the local authority to make sure that the EHC plan provides for thechild or young person to be educated in a maintained nursery school or mainstreamsetting (that is, not in a special school or special college) unless that is against the wishesof the young person or the child’s parent, or would damage the efficient education ofothers and there are no reasonable steps that could be taken to overcome this. If one ofthose conditions applies, the child or young person’s EHC plan can provide for them tobe educated in a special school or a special post-16 institution such as an independentspecialist provider.

205. This section replaces sections 316 and 316A of the Education Act 1996 and extends theprovisions to young people in post-16 education.

Section 34: Children and young people with special educational needs but no EHCplan

206. This section applies to a child or young person in England who has special educationalneeds but no EHC plan and who is to be educated in a school or post-16 institution. Itsets out the general principle that those children and young people must be educatedin a maintained nursery school, mainstream school or mainstream college except inparticular circumstances. These are: where it is agreed that they are admitted to a specialschool or special post-16 institution to be assessed for an EHC plan; it is agreed that theyare admitted to a special school or special post-16 institution following a change in theircircumstances; they are admitted to a special school which is established in a hospital;or where they are admitted to a Special Academy whose Academy arrangements allowit to admit children or young people with special educational needs who do not havean EHC plan.

207. This section replaces sections 316 and 316A of the Education Act 1996 and extends theprovisions to young people in post-16 education.

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Section 35: Children with special educational needs in maintained nurseries andmainstream schools

208. When a child with special educational needs is being educated in a maintained nurseryschool or a mainstream school, the school must enable the child to take part in theactivities of the school with other children as far as is reasonably practicable and solong as this ensures the child gets the special educational provision they need, doesnot damage the education of the other children and does not mean an inefficient useof resources.

209. This section replaces, in England, section 317(4) of the Education Act 1996.

Assessment

Section 36: Assessment of education, health and care needs

210. This section gives a child’s parent, a young person or a person acting on behalf of aschool or post-16 institution the right to request a statutory assessment. It requires localauthorities to consider whether an assessment is necessary for a child or young personwhere such a request has been made or where the authority has become responsiblefor the child or young person in some other way, such as by someone else bringingthe child or young person to the authority’s attention. The section sets out the localauthority’s duties when making their decision about whether to carry out an assessmentand in carrying out any subsequent assessment of the child or young person. In makinga decision on whether an assessment is necessary, the local authority must consult withthe child’s parents or the young person, to ensure they are involved in the process fromthe outset. If the local authority decides not to carry out an assessment they must informthe child’s parents or the young person of their decision and their reasons for it. If theyintend to carry out an education, health and care needs assessment they must inform thechild’s parents or the young person and make sure that they are aware of their rights tohave their own views considered by the local authority (either orally or in writing).

211. The local authority must carry out an assessment if, after taking account of any viewsexpressed and evidence submitted, it thinks that the child or young person has or mayhave special educational needs and that it may be necessary for special educationalprovision to be made for a child or young person through an EHC plan. The parentor young person should be informed of the outcome of the assessment and whetherthe local authority intends to prepare an EHC plan. Further detail about the assessmentprocess will be set out in regulations, including, for example, how assessments areconducted and advice obtained, how parents and young people can express their viewsand submit evidence, and about the provision of information, advice and support inconnection with an assessment.

212. Section 51 provides that if, having received and considered a request for an assessment,a local authority decides not to carry one out, the child’s parents or the young personmay appeal against that decision to the First-tier Tribunal.

213. The provision in section 36(10) is intended to make clear that when a local authority isdeciding whether to carry out an assessment for a young person aged 19 or over, it mustconsider whether the young person needs more time, in comparison to the majority ofpeople their age who do not have special educational needs, to complete their educationor training. Young people may have an EHC plan up to age 25 but, as young peoplewill be ready to leave education or training and make the transition into adult life atdiffering ages, in many cases an EHC plan will end sooner than that.

214. This section replaces, in England, sections 323 and 331 of the Education Act 1996 andsections 139A to 139C of the Learning and Skills Act 2000.

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Education, health and care plans

Section 37: Education, health and care plans

215. This section sets out what a local authority must do if the education, health and careassessment in section 36 indicates that a child or young person requires an EHC planfor their special educational provision.

216. The local authority is under a duty to make sure that an EHC plan is prepared and thenimplemented. The EHC plan should specify the short and long term outcomes that itis designed to help the child or young person to achieve and the special educational,health and social care provision that will be made to support them. This could include,for example, access to specialist teaching, speech and language therapy provision, andshort breaks.

217. The health care provision to be specified in the EHC plan is that which is reasonablyrequired by the learning difficulties and disabilities which result in the child or youngperson having special educational needs. For example, health provision could includetherapies, such as occupational therapy, and equipment, such as wheelchairs andcontinence supplies (see also section 21).

218. The social care provision to be specified in the EHC plan includes any social careprovision which must be made for a child or young person under 18 by the localauthority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970.This could include practical assistance in the home or providing an outing for a child.

219. The social care provision to be specified in the EHC plan also includes other social careprovision which is reasonably required by the learning difficulty or disability whichresults in the child or young person having special educational needs. This may includeprovision made under section 17 of the Children Act which is not covered by theChronically Sick and Disabled Persons Act 1970, for example residential short breaks.It may also include adult social care provision for young people aged 18-25 with EHCplans.

220. Other health and social care provision may be included in plans, where local authoritiesand health commissioners consider this would be beneficial to the child or youngperson. For example, if a child with an EHC plan for significant dyslexia developedan unrelated illness, it might make sense for them, their parents and the professionalssupporting them to co-ordinate their care through the EHC plan.

221. Further detail about the preparation (including time limits), content and maintenanceof an EHC plan may be set out in regulations.


Section 38: Preparation of EHC plans: draft plan

223. This section sets out the process that must be undertaken by a local authority whenpreparing a draft EHC plan. The local authority must consult with the child’s parents orthe young person, to ensure they are involved in the planning process from the outsetand their views are taken into account. The local authority must send a copy of the draftEHC plan to the child’s parent or the young person and make sure that they are awareof the ways in which they can express their views on the content of the draft EHC plan.

224. The draft EHC plan must not name a specific institution or a type of institution. This isso that parents or young people have the opportunity to request (before the end of thetime period which is specified in the notice sent to the parent or young person undersubsection (2)(b)) that a particular school, further education college in England or otherinstitution is named in the EHC plan before it is finalised. Parents and young people mayrequest any institution of the types listed in subsection (3). Parents and young peoplewill also be able make representations for an independent school or post-16 independent

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specialist provider not included in this list as is the case under the current legislativeframework (although there will be no corresponding duty on the local authority to namesuch an institution in the EHC plan or for that institution to be under a duty to admit thechild or young person). Local authorities may also specify education otherwise than ina school or post-16 institution in an EHC plan where they consider this to be suitableprovision.


Section 39: Finalising EHC plans: request for particular school or other institution

226. This section applies where the child’s parent or the young person has received a draftEHC plan and requested that a particular institution is named in the EHC plan.

227. The local authority is required to consult any institution that it is considering namingin the EHC plan and, where that institution is maintained by another local authority,the other authority. The local authority must comply with the parent or young person’srequest unless the child or young person’s attendance at the school would not meettheir special educational needs, or would be incompatible with the efficient education ofothers or the efficient use of resources. If it believes that these circumstances apply, thelocal authority must name the school or other institution, or type of institution, that thelocal authority considers to be most appropriate for the child or young person (havingconsulted that institution before naming it in the EHC plan). A copy of the final EHCplan must then be sent to the child’s parent or the young person and to the school,college or other institution that has been named in the EHC plan.

228. This section replaces, in England, section 324 and parts of Schedule 27 of the EducationAct 1996.

Section 40: Finalising EHC plans: no request for particular school or otherinstitution

229. This section applies where the child’s parent or young person has received a draftEHC plan but has not made a request for a particular institution in accordance withsection 38(2)(b)(ii). They may have said they would like an independent school, trainingprovider or early years education provider to be named, or they may have indicated nopreference at all.

230. In this eventuality, the EHC plan must name the specific institution or type of institutionthat the local authority considers appropriate. The local authority must consult anyschool or institution that it is considering naming, and where that institution ismaintained by another local authority, that authority, before finalising the EHC plan. Acopy of the final EHC plan must then be sent to the child’s parent or the young personand the school or other institution named in the EHC plan.

231. Further duties on the local authority which apply in these circumstances are set out insection 33 (duty to educate within the mainstream sector).


Section 41: Independent special schools and special post-16 institutions: approval

233. Independent schools that are specially organised to make special educationalprovision for children with special educational needs, and special post-16 institutions(independent specialist colleges) can be named in an EHC plan. This section givesthe Secretary of State the power to approve such institutions and once he has done soparents and young people can express a preference for them under section 38(2), withthe resultant conditional duty on the local authority to name the institution in the EHCplan. Approval can only be given if the institution consents. The Secretary of State maywithdraw approval and regulations may make provision about the types of institutionthat can be approved, and the criteria that must be met for such approval. Regulations

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may also set out the matters to be taken into account in deciding whether to give orwithdraw approval and may cover publication of a list of institutions that have beenapproved by the Secretary of State.

Section 42: Duty to secure special educational provision and health care provisionin accordance with EHC plan

234. Where an EHC plan is maintained for a child or young person, the local authority mustmake sure that the special educational provision set out in it is made. The local authorityneed not make the special educational provision set out in the EHC plan if the child’sparent or the young person makes alternative, suitable arrangements.

235. The responsible commissioning body must make sure that any health provision set outin the EHC plan is made. The “responsible commissioning body” in relation to anyspecified health care provision means the body (or each body) that is under a duty toarrange the health care provision for the child or young person. This will typically bethe relevant clinical commissioning group but may also be the NHS CommissioningBoard. The responsible commissioning body need not make the health provision set outin the EHC plan if the child’s parent or the young person makes alternative, suitablearrangements.

236. This section replaces and expands, in England, section 324 of the Education Act 1996.

Section 43: Schools and other institutions named in EHC plan: duty to admit

237. Where a maintained school, maintained nursery school, Academy, institution in theEnglish further education sector (a further education college or sixth form college),non-maintained special school or independent school or independent specialist collegeapproved by the Secretary of State under section 41 is named in an EHC plan it mustadmit the child or young person.


Section 44: Reviews and re-assessments

239. This section requires local authorities to review a child or young person’s EHC plan atleast every 12 months. It also sets out when re-assessments must take place. A reviewis intended to consider whether the provision in the EHC plan is meeting the childor young person’s assessed needs and whether they are making progress towards theoutcomes identified. A re-assessment means undertaking the assessment process insection 36 again, for example when a child or young person’s needs may have changedsignificantly. Local authorities must consult with the parent of the child, or the youngperson, during any review or re-assessment to ensure they are involved in the processfrom the outset and their views are taken into account.

240. The local authority must carry out a re-assessment if one is requested by the child’sparent, the young person or the school, college or other institution that they attend,subject to particular exemptions to be set out in regulations (which might include forexample where a previous assessment has been conducted relatively recently). The localauthority also has the power to carry out a re-assessment without waiting for one to berequested by a parent or school.

241. In reviewing an EHC plan maintained for a young person aged 19 or over, or decidingwhether to reassess their needs the local authority must have regard to whether theeducational or training outcomes specified in the plan have been achieved. Manyyoung people will have completed their education and made a successful transition toadulthood before 25. However an EHC plan can remain in place for those who needlonger to complete or consolidate their learning to enable them to make a successfultransition to adulthood.

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242. More detail about the process for reviewing, amending or replacing EHC plans willbe provided in regulations including circumstances in which a local authority must ormay review an EHC plan (for example, before the end of a specified phase of a childor young person’s education, or when a young person becomes NEET, that is, they arenot in education, employment or training).


Section 45: Ceasing to maintain an EHC plan

244. A local authority may only stop maintaining an EHC plan if they are no longerresponsible for that child or young person, for example if the child or young personhas moved to another area, or they consider that it is no longer necessary for the EHCplan to be maintained.

245. The section sets out some of the circumstances under which it would no longer benecessary to maintain the EHC plan, for example, where the child or young person nolonger requires the special educational provision specified in the EHC plan.

246. When determining that a young person aged 19 or over no longer requires specialeducational provision, the local authority must have regard to whether the educationalor training outcomes specified in the EHC plan have been achieved. This enables alocal authority to continue an EHC plan where a young person has dropped out ofeducation (i.e. is not in education, employment or training (NEET)) but would like toreturn to education or training. Regulations may make further provisions about ceasingto maintain an EHC plan.

247. When an appeal is made against a local authority’s decision to cease an EHC plan, theauthority must continue to maintain the EHC plan until the time has passed for bringingan appeal or the appeal has been determined by the First tier Tribunal.

Section 46: Maintaining an EHC plan after young person’s 25th birthday

248. This section gives local authorities the power to maintain an EHC plan for a youngperson until the end of the academic year (such date to be prescribed in regulations)in which they become 25, enabling them to take account of individual needs andcircumstances.

Section 47: Transfer of EHC plans

249. This section enables regulations to be made regarding the process for transfers of EHCplans, when a child or young person with an EHC plan moves between local authorityareas. This may include a duty on the new local authority to maintain an EHC planprepared by the previous local authority.

250. This section replaces, in relation to England, paragraph 7(2) of Schedule 27 to theEducation Act 1996.

Section 48: Release of a child or young person for whom EHC plan previouslymaintained

251. If a child or young person who is released from a custodial sentence previously had anEHC plan, or if the local authority is keeping a plan for them under section 70 the localauthority that is responsible for the child or young person on their release (which maynot be the same local authority that secured the EHC plan originally) must maintain theprevious EHC plan and review it as soon as is practicable after release.

Section 49: Personal budgets and direct payments

252. This section requires local authorities to prepare a personal budget for children or youngpeople for whom the local authority maintains an EHC plan or has decided to make

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an EHC plan, if asked to do so by the child’s parent or the young person. A personalbudget is an amount available to secure particular provision set out in the EHC planand provides a way of involving parents or young people in securing that provision.

253. Personal budgets can take the form of direct payments which families can spendthemselves or notional budgets which they can devise with the local authority and whichthe local authority can spend on their behalf at their direction by arranging the provisionin the EHC plan – or a combination of both.

254. Regulations will provide details about personal budgets, including provision that maybe included in a personal budget or to which a direct payment may relate, the provisionof information, support and advice in connection with personal budgets and directpayments, and when, to whom and on what conditions direct payments may or maynot be made. Any regulations which authorise direct payments to a parent or a youngperson must require them to consent before a direct payment can be made. They mustalso require local authorities to stop making direct payments where that consent iswithdrawn.

255. Special educational provision purchased with a direct payment will be treated asprovision secured by the local authority for the purposes of fulfilling its duty undersection 42(2) to secure the special educational provision in an EHC plan and health careprovision purchased with a direct payment will be treated as provision arranged by thecommissioning body for the purposes of fulfilling its duty under section 42(3).

Section 50: Continuation of services under section 17 of the Children Act 1989

256. This section inserts a new provision (section 17ZG) into the Children Act 1989.

257. It gives a power to local authorities to continue to provide services they have beenproviding to a young person before their 18th birthday under section 17 of the ChildrenAct 1989 (services to children in need, their families and others) to the young personwhen they are 18 and over, where the young person has an EHC plan. The local authorityretains discretion over how long it chooses to provide services under section 17 whilean EHC plan remains in place. Where the young person no longer has an EHC plan,the local authority no longer has the power to extend the provision of these services toyoung people over 18.

258. The provision in this section aims to support better transitions between children’s andadult services for young people with EHC plans. Guidance on how an authority shoulduse this discretion will be set out in the Code of Practice issued under section 77.

Appeals, mediation and dispute resolution

Section 51: Appeals

259. This section sets out the decisions taken by a local authority in relation to assessmentsand EHC plans against which a parent or young person can appeal. These are set outin subsection (2).

260. This section extends the current right of appeal to the First-tier Tribunal to young peopleaged up to 25 and, in the case of young people in school, transfers the right from theparent to the young person. The section also extends the right of appeal to the Tribunalto the parents of children under 2 years of age.

261. An appeal can only be made after mediation has been considered and, where the parentor young person has decided to take part in mediation, this has taken place in accordancewith section 52. The Secretary of State may make regulations in relation to appeals. TheSecretary of State’s powers include the power to make regulations giving the Tribunalthe power to make recommendations about the health and social care elements of EHCplans in pilot areas (see section 51(4)(a)).

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262. Subsection (5) recreates an offence, carried over from the Education Act 1996. Aperson commits an offence if, without reasonable excuse, they fail to comply withany requirement to provide or allow for inspection of documents, or attend a Tribunalhearing to give evidence or produce documents, where that requirement is imposedby the Tribunal Procedure Rules in relation to an SEN appeal. Under subsection (6) aperson guilty of such an offence is liable on summary conviction to a fine not exceedinglevel 3 on the standard scale. Under the Tribunal Procedure Rules nobody may becompelled to give any evidence or produce any document that the person could not becompelled to give or produce on a trial of an action in a court of law.

263. This section replaces, in England, sections 325, 326, 328, 328A, 329and 336(5A) and(6) of, and paragraphs 8 and 11 of Schedule 27 to, the Education Act 1996.

Section 52: Right to mediation

264. This section sets out that local authorities must inform parents and young people,following a decision in relation to an assessment or a plan or after the plan is made,amended or replaced, of their right to mediation about educational, health and socialcare issues.

265. Mediation is different to an appeal, in that it seeks to resolve matters through agreementbetween parents/young people and local authorities rather than through a judicialdecision. The mediator must be independent, meaning that he or she cannot be anemployee of a local authority.

266. The local authority must also inform parents and young people that before makingcertain appeals to the Tribunal they must obtain a certificate, either following the receiptof information about mediation or following mediation. If the parent wishes to pursuemediation then they must tell the local authority that they intend to do so and what theywant to pursue mediation about and, if they want health provision or a particular kindof health provision included in the plan, what that health provision is.

Section 53: Mediation: health care issues

267. This section sets out that where the parent or young person wants to pursue mediationand the mediation issues include health care provision then the local authority mustinform the relevant health commissioning body, either the clinical commissioninggroup or the NHS Commissioning Board, of the mediation issues and of any healthcare provision that the parent or young person wants. If the parent or young personjust wants mediation about health care provision then the responsible commissioningbody or bodies must arrange for mediation, ensure that the mediation is conductedby an independent person and participate in the mediation. If the mediation issuesinclude education and/or social care then the local authority must arrange the mediation,ensure it is conducted by an independent person and the local authority and theresponsible health commissioning body must participate. An independent person, in thiscontext, is someone who is not employed by a local authority in England or a clinicalcommissioning group or the NHS Commissioning Board.

Section 54: Mediation: educational and social care issues etc

268. This section ensures that where the mediation does not include health care issues butinvolves education and/or social care, the local authority must arrange the mediation,make sure that it is conducted by an independent person and participate in the mediation.

Section 55: Mediation

269. When a parent or young person wishes to bring an appeal about the special educationalneeds element of a plan, they may do so only if an independent mediation adviser hasprovided them with information about mediation and how it might help. It will be upto the parents or young person to decide whether to go forward to mediation. Where

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they decide to do so, they must take part in mediation before they can bring an appealto the First-tier Tribunal. Where they decide against mediation they will be able to gostraight to appeal.

270. The mediation adviser must issue a certificate to the parent or young person if he or shehas provided them with information and advice about pursuing mediation and the parentor young person has informed the adviser that they do not wish to pursue mediationabout assessments, the drawing up of plans or the special educational element of theEHC plan. The adviser must also issue a certificate if they have provided informationand advice, the parent or young person has told them they wish to pursue mediationwith the local authority and has participated in mediation. Parents and young peopledo not have to contact the mediation adviser if they want mediation about the health orsocial care elements of the plan.

271. Appeals which only concern the name of a school, college or other institution specifiedin the EHC plan or the type of school, college or institution specified in the EHC planor the fact that the EHC plan does not name any school, college or other institution canbe made without getting mediation information or going to mediation. This is becausethe parent or young person will already have been able to request a particular school orinstitution in the further education sector, and had discussions with the local authorityabout which institution should be named on the EHC plan. Requiring mediation inthese circumstances would involve repeating the same discussions. This section givesthe Secretary of State regulation-making powers concerning mediation as listed inthis section, including about giving notice, imposing time limits, qualifications andexperience of mediation advisers and local authority action following mediation.

Section 56: Mediation: supplementary

272. This section gives the Secretary of State the power to make regulations aboutmediation, about such things as giving notice, imposing time limits and enabling alocal authority or commissioning body to take prescribed steps following the conclusionof mediation. It also defines “mediation adviser”, and makes clear that the advisercannot be an employee of a local authority, clinical commissioning group or the NHSCommissioning Board. This section also defines “commissioning body” in relation tomediation.

Section 57: Resolution of disagreements

273. Local authorities must make arrangements for avoiding or resolving disagreementswhere the parents of a child with special educational needs, or a young person withsuch needs, do not agree with how the local authority or an education body (listed insubsection (9)) with duties under Part 3 of the Act has carried out those duties. It mustalso make arrangements to avoid or resolve disagreements between the parents of achild or a young person and any school or post-16 institution specifically about thespecial educational provision made by the institution for that child or young person. Thedisagreements in this section also cover disagreements between parents or young peopleon the one hand and the responsible health commissioning bodies on the other abouthealth care provision at the time assessments or re-assessments are being undertakenor EHC plans are being drawn up or reviewed. Disagreement resolution can also coverdisagreements between local authorities and their responsible health commissioningbodies.

274. The section does not require either parents or young people on the one hand, oreducation bodies, local authorities or health commissioning bodies on the other, toparticipate in resolving disagreements – use of these arrangements is entirely voluntary.

275. Local authorities must appoint someone who is independent to help resolve adisagreement, or prevent it happening in the first place. Employees of a local authority,clinical commissioning group or the NHS Commissioning Board do not meet thecriterion of being independent and cannot take on that role.

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276. Local authorities must tell various people, including parents and young people, aboutthe arrangements they have put in place to resolve disagreements.

277. This section replaces, in England, section 332B of the Education Act 1996.

Section 58: Appeals and claims by children: pilot schemes

278. This section gives the Secretary of State a power to establish pilot schemes in localauthority areas to enable children to make appeals in relation to their special educationalneeds and to bring disability discrimination claims against schools to the First-tierTribunal. Currently the Education Act 1996 and the Equality Act 2010 only give parentssuch a right.

279. The pilots will test whether the right to appeal is something that children would use,the best way to handle these appeals and the cost implications, with a view to extendingthe right to children across England. The section establishes the things the pilot schemecan cover. These include the age from which a child may appeal and make claims;how mediation before a child’s appeal works; and advice, information and advocacyprovided to a child. The section stipulates that the power to make an order establishingpilot schemes is repealed after five years (from the date on which the Act receives RoyalAssent).

Section 59: Appeals and claims by children: follow-up provision

280. This section provides the Secretary of State with the power to make an order enablingall children in England to bring appeals and make disability discrimination claims tothe First-tier Tribunal.

281. The power would be used after pilots have been run. The Secretary of State may notuse this power until pilot schemes have been in place for two years.

282. The section establishes what an order made by the Secretary of State can cover and thisincludes the age from which a child may bring appeals or make disability discriminationclaims; about mediation; and advice, information and advocacy provided to a child(mirroring section 58(2)).

Section 60: Equality Act 2010: claims against schools by disabled young people

283. This section amends the Equality Act 2010 so that young people in England who areover compulsory school age and in school can make disability discrimination claims tothe First-tier Tribunal themselves. Currently only the parents of disabled young peoplecan make claims to the Tribunal. This mirrors the provision made in section 51 whichallows for young people over compulsory school age to make special educational needsappeals to the Tribunal.

284. This section does not affect the rights of parents of young people in Wales to makedisability discrimination claims to the Special Educational Needs Tribunal for Wales.Pilots on giving children and young people in Wales the right to make specialeducational needs appeals and disability discrimination claims to its Tribunal arebeing conducted with the right being given to all children and young people in Walesfollowing the pilots. The necessary changes to the Equality Act 2010 and the EducationAct 1996 will be achieved through an Act of the Assembly.

Special educational provision: functions of local authorities

Section 61: Special educational provision otherwise than in schools, post-16institutions etc

285. A local authority may arrange for special educational provision to be made for a childor young person otherwise than in a school, college or provider of relevant early yearseducation. But before it can do so it has to be satisfied that it would be inappropriate

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for provision to be made in one of those settings and must have consulted the child’sparent or the young person.

286. This provision could include, for example, early years provision that is not part of thefree early years provision under section 7 of the Childcare Act 2006.


Section 62: Special educational provision outside England and Wales

288. This section enables local authorities to arrange special education provision for a childor young person with an EHC plan outside England and Wales in an institution thatspecialises in providing for special educational needs, and gives them power to pay for,or contribute to, the costs of the child or young person attending such an institution.


Section 63: Fees for special educational provision at non-maintained schools andpost-16 institutions

290. Where a local authority is responsible for a child or young person with specialeducational needs, and special educational provision is made for him or her at a school,post-16 institution or provider of relevant early years education, the local authoritymust pay the fees for the education and training received where the institution is namedin the EHC plan. This also applies if there is no EHC plan and the local authority issatisfied the child or young person requires special educational provision and that it isappropriate for them to receive it at the institution in question.

291. Where board and lodging are provided for the child or young person at such a schoolor college or place where relevant early years education is provided, the local authoritymust pay those fees if it is satisfied that special educational provision cannot be madethere unless board and lodging are provided.


Section 64: Supply of goods and services

293. This section gives local authorities the power to supply goods and services tomaintained schools, maintained nursery schools, Academies and institutions in thefurther education sector (further education colleges or sixth form colleges) that arelikely to be attended by a person with an EHC plan that the authority is maintaining forthe purpose of supporting children and young people with special educational needs.Local authorities may supply goods and services on terms and conditions they seefit (including payment). Local authorities may supply goods and services to otherlocal authorities and other bodies to help them make special educational provision forchildren receiving relevant early years education. This could cover specialist servicesto support children with different special educational needs, for example, sensoryimpairments.


Section 65: Access to schools, post-16 institutions and other institutions

295. This section gives local authorities in England the right to have access at any reasonabletime to the premises of a school or other institution in England at which education ortraining is provided to a child or young person with an EHC plan maintained by thelocal authority in question, for the purpose of monitoring that education or training.

296. The section replaces, in England, and expands the remit of, section 327 of the EducationAct 1996. Section 327 only applies to maintained schools which are maintained byanother authority and independent schools. This section takes account of the extended

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age remit to which the new special educational needs provisions apply and appliesto any institution providing the child or young person with education or training inaccordance with an EHC plan. Local authorities will, under this section, have access toschools and special post-16 institutions in Wales (but not to general further educationinstitutions in Wales) for the purpose of monitoring the education or training madeunder an EHC plan.

Special educational provision: functions of governing bodies and others

Section 66: Using best endeavours to secure special educational provision

297. This section requires that the governing bodies, proprietors or management committeesof those institutions listed in subsection (1) use their best endeavours to secure that thespecial educational provision that is called for by a pupil or student’s special educationalneeds is made.

298. The section replaces, in England, and expands the remit of section 317(1)(a) of theEducation Act 1996. Section 317 applied to the governing bodies of community,foundation or voluntary schools or maintained nursery schools. The new section takesaccount of the age remit of the new special educational needs provisions and theexpansion in the number of Academies by applying the duty to further educationinstitutions, Academy schools and 16 to 19 Academies. The new section also appliesto pupil referral units.

Section 67: SEN co-ordinators

299. This section requires governing bodies of maintained mainstream schools, (includingAcademy schools) and maintained nursery schools to ensure that there is a memberof staff designated as Special Educational Needs (SEN) co-ordinator. The SEN Co-ordinator will have responsibility for co-ordinating special educational provisionfor children and young people with special educational needs in their school. Thiscan include providing advice to other teachers on supporting children with specialeducational needs and liaising with agencies outside the school such as social careservices.

300. The section gives the Secretary of State power to make regulations requiring governingbodies and proprietors to ensure that SEN Co-ordinators have prescribed qualificationsand/or experience and conferring other functions on them in relation to SEN co-ordinators.

301. This section replaces, in England, section 317(3A) and (3B) of the Education Act 1996.

Section 68: Informing parents and young people

302. This section, which applies where a child or young person has no EHC plan, requiresgoverning bodies of maintained schools, maintained nursery schools, the managementcommittees of pupil referral units, and the proprietors of Academy schools andAlternative Provision Academies to tell a child’s parent, or the young person whenspecial educational provision is being made for the child or young person. This does notneed to happen if the child or young person has an EHC plan since parents of childrenwith EHC plans and young people who have EHC plans will already be aware thatspecial educational provision is being made.

303. This section replaces, in England, section 317A of the Education Act 1996 and extendsthe provision to include young people.

Section 69: SEN information report

304. This section imposes a duty on the governing bodies of maintained schools andmaintained nursery schools in England, and proprietors of Academy schools in

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England to prepare a report containing “special educational needs information”.Special educational needs information is information about the implementation of thegoverning body’s or proprietor’s policy for pupils at the school with special educationalneeds, and information as to the arrangements for the admission of disabled pupils tothe school; the steps taken to prevent less favourable treatment of disabled pupils; thefacilities provided to assist access to the school by disabled pupils; and the accessibilityplan which schools must publish under the Equality Act 2010. Regulations will set outthe information to be provided.

305. This section replaces, in England, section 317(5) and (6) of the Education Act 1996.This information is currently published on schools’ websites.

Detained Persons

Section 70: Application of Part to detained persons

306. This section sets out which sections of this Part apply to those in custody, namelychildren and young people that are detained in pursuance of a court order or an orderof recall made by the Secretary of State (subsection (1)).

307. Subsection (3) provides a power for regulations to apply any provision of this Partwith or without modifications and subsection (4) places a duty on the Secretary ofState to consult with the Welsh Ministers before making those regulations if they applyprovision under the Part to those detained in Wales.

308. This section defines key terms such as “detained person” (a child or young personunder 19 who is detained in a young offender institution, secure training centre orsecure children’s home), “detained person’s EHC needs assessment” and “appropriateperson”.

309. Subsection (7) provides a power for the Secretary of State to make regulations to modifythe definition of “the home authority” which is set out in the Education Act 1996. Thispower might be required for instance where a detained person with an EHC plan is alsoa looked after child.

Section 71: Assessment of post-detention education, health and care needs ofdetained persons

310. This section mirrors section 36 and allows the detained young person or a detainedchild’s parent, or the person in charge of the secure accommodation to request anEHC needs assessment. It requires the home local authority to consider whether anassessment is necessary where such a request has been made or where someone elsehas brought the child or young person to the authority’s attention. This section sets outthe local authority’s duties when making their decision about whether to carry out anassessment and in carrying out any subsequent assessment of the child or young person.In making a decision on whether an assessment is necessary, the local authority mustconsult with the child’s parents or the young person and the person in charge of thesecure accommodation in which the child or young person is detained.

311. If the local authority decides not to carry out an assessment they must inform the child’sparents or the young person and the person in charge of the secure accommodationin which the child or young person is detained with their reasons for the decision.If they intend to carry out an education, health and care needs assessment they mustinform the child’s parents or the young person and the person in charge of the secureaccommodation in which the child or young person is detained to make sure that theyare aware of their rights to have their own views considered by the local authority (eitherorally or in writing).

312. The local authority must carry out an assessment if, after taking account of any viewsexpressed and evidence submitted, it thinks that the child or young person has or may

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have special educational needs and that it may be necessary for special educationalprovision to be made for them through an EHC plan on their release from detention.The parent or young person and the person in charge of the secure accommodation inwhich the child or young person is detained should be informed of the outcome of theassessment and whether the local authority intends to prepare an EHC Plan.

313. Regulations may specify how assessments for EHC plans will apply in custody.

Section 72: Securing EHC plans for certain detained persons

314. This section places a duty on the detained person’s home local authority to securean EHC plan if the detained person’s EHC needs assessment concludes that one isnecessary. Sections 37(2) to (5), 33(2) to (7) and 38 to 40 will apply in relation to anEHC plan secured for a detained person as they would for a child or young person whois not detained.

Section 73: EHC plans for certain detained persons: appeals and mediation

315. This section provides a right of appeal for detained persons. It enables the parents ofchildren and young people to appeal to the First Tier Tribunal about: a decision by theirlocal authority not to secure an EHC needs assessment; a decision not to secure an EHCplan after an assessment; the school or institution named in the plan; or if no school orinstitution is named in the plan. Regulations may make provision about appeals madeto the Tribunal under this section. Section 52(2) to (5) applies when a detained youngperson or the parent of a detained child appeals under this section.

316. This section also sets out that where the parent or young person wants to makean appeal to the Tribunal and wishes to pursue mediation, the local authority mustarrange for mediation, ensure that the mediation is conducted by an independent personand participate in the mediation. If the mediation issues include education and/orsocial care then the local authority must arrange the mediation, ensure it is conductedby an independent person and the local authority. An independent person, in thiscontext, is someone who is not employed by a local authority in England or a clinicalcommissioning group or the National Health Service Commissioning Board.

Section 74: Duty to keep EHC plans for detained persons.

317. This section requires home local authorities to keep an EHC plan for a young personwhile they are detained in relevant youth accommodation. The local authority mustarrange appropriate special educational provision and the health services commissionerappropriate health care provision. This is the provision specified in the EHC plan. Ifit is not practicable to arrange this provision, provision which corresponds as closelyas possible to that in the EHC plan must be arranged. Where the provision specified inthe EHC plan is no longer appropriate, provision must be arranged which reasonablyappears to be appropriate.

Section 75: Supply of goods and services: detained persons

318. This section allows local authorities in England to supply goods and services to anyother authority or person making special educational provision for a detained person.This is to help the local authority meet their duties under section 70. The local authoritymay set the terms and conditions for the supply of the goods and services.

Information to improve well-being of children and young people with SEN

Section 76: Provision and publication of special needs information

319. This section places a duty on the Secretary of State to exercise his or her information-gathering powers to secure special educational needs information about children andyoung people under 19 from schools and local authorities and the provision made for

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them which he thinks would be likely to help in improving the well-being of thosechildren and young people. This must be published annually, in a form chosen by theSecretary of State, and must not include the names of individuals.

320. This section replaces, in England, section 332C of the Education Act 1996. That powerhas been used to publish a document each year containing a range of informationabout the numbers of children and young people with special educational needs,their characteristics, including the types of special educational needs, where they areeducated and their achievements.

Code of Practice

Section 77: Code of Practice

321. This section requires the Secretary of State to issue a Code of Practice giving guidanceto local authorities, the governing bodies, proprietors and management committees ofvarious institutions, and other bodies listed in subsection (1) on the exercise of theirfunctions under these provisions. These bodies must have regard to the Code whencarrying out those functions, as must those who help them carry out those functions.

322. The First-tier Tribunal must also have regard to any provision in the Code that itconsiders to be relevant to any question arising out of a special educational needs appealwith which it is dealing.

323. This section also empowers the Secretary of State to revise the Code from time to time,and requires him or her to publish the current version.

324. This section replaces, in England, section 313 of the Education Act 1996 and widensthe scope of the bodies who must have regard to the Code from maintained schools,maintained nursery schools and local authorities to include colleges, Academies, pupilreferral units and early years education providers.

Section 78: Making and approval of Code

325. This section sets out the procedure for making and approving the Code of Practice. Itrequires the Secretary of State, when he proposes to issue or revise a Code of Practice, toprepare a draft, consult those he sees fit and consider representations made by them. Ifhe decides to proceed with the draft he must lay a copy before each House of Parliament.

326. In the case of the first draft of the Code, he cannot issue it until it has been approved byboth Houses of Parliament. If he later revises the Code, he must not issue it if, within aperiod of 40 days, the House resolves not to approve the draft.

327. The section replaces section 314 of the Education Act 1996 in relation to England.

Section 79: Review of resolution of disagreements

328. This section requires the Secretary of State and the Lord Chancellor to carry out areview about how effectively disagreements in relation to children and young peoplewith special educational needs are being resolved. The Secretary of State and the LordChancellor must prepare a report on the outcome of the review and lay a report beforeParliament within three years from the earliest date on which any provision in Part 3comes into force.

329. Part of the review will involve piloting the ability of the Tribunal to makerecommendations about the health and social care elements of EHC plans in accordancewith regulations which will be made under section 51(4)(a) and (5).

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Supplementary

Section 80: Parents and young people lacking capacity

330. The section enables regulations to modify any statutory provision for the purposeof giving effect to this Part where the parent of a child, or the young person, lackscapacity at the relevant time. Examples of where modifications might be needed includerequesting a school or post-16 institution to be named in the EHC plan, and taking partin mediation. “Lacking capacity” has the same meaning as in the Mental Capacity Act2005. “Relevant time” means the time at which something is required or permitted tobe done by or in relation to a child’s parent or young person. A representative is adeputy under the Mental Capacity Act, the person who has been given a lasting powerof attorney or an attorney in whom an enduring power of attorney has been vested.Where a young person lacking capacity does not have a representative, the referenceto young person should be read as the young person’s parent (or where that parent alsolacks capacity, to that parent’s representative).

331. Regulations under the section may give a deputy under the Mental Capacity Act thepower to take the relevant decisions, even where this requires the discharge of parentalresponsibility, which would otherwise not be permitted by that Act.

Section 81: Disapplication of Chapter 1 of Part 4 of EA 1996 in relation to childrenin England

332. This section provides for Chapter 1 of Part 4 of the Education Act 1996 to cease to applyin relation to children with special educational needs in the area of a local authority inEngland when these provisions are implemented. It will continue to apply in relation toWales and children with SEN statements prepared by a local authority in Wales underthat Chapter.

Part 4 – Childcare Etc

Section 84: Childminder agencies

333. This section gives effect to Schedule 4, which amends the Childcare Act 2006 (“the CA2006”) to provide for the registration of childminder agencies on the childcare registersmaintained by the Chief Inspector. It also provides for the registration of childminders(and others who offer childcare on domestic premises) with those agencies.

334. Currently anyone wishing to offer childcare provision is obliged to register with theChief Inspector (unless they are exempt). The amendments to Part 3 of the CA 2006 willenable anyone wishing to offer childcare on domestic premises who would otherwisebe obliged to apply to register with the Chief Inspector to register instead with achildminder agency (that is an agency which is itself registered on the early yearsregister or the general childcare register). The Schedule also contains consequentialamendments.

Schedule 4: Childminder agencies: amendments

335. Schedule 4 makes the amendments necessary to:

• Enable prospective childminders and certain other providers of childcare ondomestic premises to apply to register with a childminder agency as an alternativeto making an application to the Chief Inspector;

• Provide for childminder agencies, which must be registered on the early yearsregister or Part A of the general childcare register;

• Enable the Chief Inspector to impose conditions on and inspect childminderagencies;

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• Enable the Chief Inspector to take enforcement action in respect of unregisteredpersons who are falsely representing that they are childminder agencies.

336. Part 1 of Schedule 4 amends section 32 of the CA 2006.

337. Section 32 requires the Chief Inspector to maintain two registers: the early years registerand the general childcare register. The early years register currently lists anyone whois registered as the provider of childcare for a young child (that is a child from birth upto the first September after the child turns five) for whom registration is compulsory.The general childcare register is split into two parts. Part A currently lists all thoseproviding childcare for children over the age of 5 but under the age of 8 (later yearsproviders) for whom registration is compulsory. Part B lists all childcare providers whoare not required to be registered but have done so voluntarily. Paragraph 2 thereforeinserts a new subsection (2)(b) which provides for early years childminder agencies tobe registered on the early years register, a new subsection (4)(b) which provides for lateryears childminder agencies to be registered in Part A of the general childcare register,and amends subsection (5) so that Part B will only list childcare providers registeredon the voluntary register by the Chief Inspector.

338. Part 2 of Schedule 4 amends Chapter 2 of the CA 2006 to allow for the registration ofchildminders and those who offer other early years provision on domestic premises withearly years childminder agencies. It also introduces a new Chapter 2A concerning theregistration and regulation of early years childminder agencies. Early years childminderagencies will register early years childminders and other early years providers (thoseoffering early years provision on domestic premises) and provide training and supportto such providers. Agencies will also be responsible for monitoring providers registeredwith them and ensuring that the early years provision is of a sufficient standard.

339. Pursuant to section 33(1) of the CA 2006 a person is prohibited from providing earlyyears childminding in England unless registered in the early years register. Early yearschildminding is early years provision provided on domestic premises for reward wherethere are no more than three people providing the care or assisting with its provision (seesections 96(4) and (5)). Paragraph 4 amends section 33 so that anyone registered withan early years childminder agency can also lawfully provide early years childminding.

340. Section 34 sets out the registration requirements for early years providers other thanchildminders. Currently anyone wishing to offer early years provision on domesticpremises which would be childminding but for the fact that the number of peopleassisting with the provision is greater than three must be registered in the early yearsregister in respect of the premises. Paragraph 5 amends section 34 so that theseproviders can be registered with an early years childminder agency in respect of thepremises and can therefore also lawfully offer early years provision.

341. Paragraph 6 amends section 35 so as to allow anyone who proposes to offer earlyyears childminding to make an application for registration to an early years childminderagency or to the Chief Inspector. Subsection (2)(c) is amended so that only applicationsto the Chief Inspector need to be accompanied by a prescribed fee. Childminderagencies may charge such fees to childminders as they wish, and this will notbe prescribed in legislation. Paragraph 6 also introduces new subsection (4A). Itallows a childminder agency to grant an application for registration if a childminderis not disqualified from registration by regulations under section 75 of the CA2006 and it appears to the agency that the childminder has met the prescribedrequirements for registration (and is likely to continue to do so) and any other reasonablerequirements that the agency has imposed. “Other reasonable requirements” mayinclude requirements about the qualification levels or experience of childminders.Unlike the Chief Inspector, a childminder agency has discretion as to whether to registera childminder who otherwise meets the prescribed requirements for registration.

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342. New subsection (5)(aa) provides that the power to prescribe requirements forregistration can be used to prohibit childminders from being registered on both the earlyyears register and with a childminder agency at the same time. New subsection (5)(ab)provides that the power to prescribe requirements for registration can be used to prohibitchildminders from being registered with an early years childminder agency as an earlyyears childminder, whilst registered with another childminder agency or by the ChiefInspector in the early years register or general childcare register.

343. Paragraph 7 introduces a new subsection (1A) into section 36 so as to allow anyonewho proposes to offer early years provision on domestic premises which would bechildminding but for section 96(5) to make an application for registration either to theChief Inspector or to a childminder agency in respect of the premises. Once amended,section 36 will operate in the same way as section 35, as amended, which concernsapplications for registration by early years childminders.

344. Paragraph 9 introduces new section 37A which places an obligation on early yearschildminder agencies to place successful applicants in the register maintained by theagency and to issue them with certificates of registration. It also requires registrationcertificates to set out particular information as prescribed in regulations and makesprovision for amended certificates.

345. Paragraph 11 amends section 44 of the CA 2006 so that a “relevant instrument” (thatis a learning and development order or regulation prescribing welfare requirementsmade under section 39(1)) may also confer powers and impose duties on early yearschildminder agencies in the exercise of their functions under Part 3. In particular it mayrequire an early years childminder agency, in exercising these functions, to have regardto factors, standards and other matters prescribed by or referred to in the instrument. Italso provides for allegations that a person has failed to have regard to factors, standardsand other matters to be taken into account by an agency.

346. Paragraph 12 amends section 49 of the CA 2006 so that provisions relating toinspection apply only to childminders or other early years providers registered on theearly years register. New section 51D in paragraph 13 makes provision for inspectionsof childminder agencies. Childminders registered with early years childminder agencieswill not be subject to inspections under section 49. Instead, it is intended that they willbe subject to regular monitoring visits from the agency they are registered with, wherethe agency will assess and report on the standards of care being delivered (includinghow well the childminder meets the requirements of the Early Years Foundation Stage).Inspections of early years childminder agencies under new section 51D also allow forthe Chief Inspector to inspect early years providers registered with an agency as partof the agency’s inspection.

347. Paragraph 13 of the Schedule inserts a new Chapter 2A into Part 3 of the CA 2006comprising new sections 51A to 51F relating to the registration and regulation ofearly years childminder agencies. These sections are similar in effect to the equivalentsections relating to the registration by the Chief Inspector of childcare providers.

348. Section 51A deals with applications for registration by early years childminderagencies. Subsection (3) requires the Chief Inspector to grant an application forregistration as an early years childminder agency if the applicant is not disqualified fromregistration and the requirements for registration, which will be set out in regulations,are satisfied and are likely to continue to be satisfied. Subsection (4) requires the ChiefInspector to refuse an application where the applicant is disqualified and/or where therequirements set out in regulations are not met.

349. Subsection (5) sets out some of the matters which the regulations may deal with andthese include (but are not limited to) requirements relating to the applicant, the agency’sarrangements for registering early years providers and the provision, to the ChiefInspector, of information about early years providers registered with the applicant.Subsection (5)(f) allows for requirements in relation to the agency’s arrangements for

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training and monitoring early years providers and providing them with information,advice and assistance. Subsection (5)(g) allows for requirements in relation to theagency’s arrangements for ensuring that early years provision (of those registered withit) is of a sufficient standard.

350. Section 51B places an obligation on the Chief Inspector to place successful applicants inthe early years register and to issue them with certificates of registration. It also requiresregistration certificates to set out particular information as prescribed in regulations andmakes provision for amended certificates.

351. Section 51C deals with conditions on registration for early years childminder agencies.It allows the Chief Inspector to impose any appropriate conditions at any time and tovary or remove any conditions at any time. Under subsection (4) it is an offence if,without reasonable excuse, a person does not comply with registration conditions.

352. Section 51D relates to inspection of early years childminder agencies. It requiresthe Chief Inspector to inspect early years childminder agencies at the request of theSecretary of State. It also allows the Chief Inspector to inspect early years childminderagencies at any other time when the Chief Inspector considers it appropriate. Subsection(2) allows the Chief Inspector, as part of an agency’s inspection, to inspect theearly years provision provided by those registered with the agency to ensure that theChief Inspector is able to assess the quality of support being offered by the agencythrough visiting providers registered with an agency. Subsection (3) allows the ChiefInspector to charge a fee, as prescribed in regulations, for an inspection of an earlyyears childminder agency, when both the agency has requested an inspection and theSecretary of State requires it. This mirrors section 85, which enables the Chief Inspectorto charge a fee if he carries out an inspection of an early years provider at the requestof the provider. Subsection (4) provides for regulations to require the early yearschildminder agency to notify particular people of an inspection. Regulations could, forexample, require agencies to notify childminders registered with them of an impendinginspection.

353. Section 51E sets out requirements for the Chief Inspector to report, in writing, followingan inspection of an early years childminder agency and makes provision for thedistribution of copies of the report. Subsection (3) allows for regulations to be maderequiring the agency to make copies of the report available to prescribed persons. Thiscould include, for example, childminders registered with the agency and parents whoplace their children in the care of childminders registered with that agency.

354. Section 51F makes it an offence for a person to falsely represent that they are an earlyyears childminder agency. This would mean, for example, that a person purportingto register childminders and other early years providers who was not registered as anagency on the early years register would be committing an offence.

355. Part 3 of Schedule 4 (later years childminder agencies) amends Chapter 3 of the CA2006 to allow for the registration of childminders and others who offer later yearsprovision on domestic premises for children under eight with later years childminderagencies. It also introduces a new Chapter 3A concerning the regulation of lateryears childminder agencies. Later years childminder agencies will register later yearschildminders and other later years providers (those offering later years provision ondomestic premises) who would otherwise be required to register in Part A of the generalchildcare register and provide training and support to such providers. Agencies will alsobe responsible for monitoring providers registered with them.

356. Later years provision in relation to a child means the provision of childcare at anytime from the first September following his/her 5th birthday up to the age of 18 (seesection 96(6)). Later years childminding is later years provision provided on domesticpremises for reward where there are no more than three people providing the careor assisting with its provision (see sections 96(8) and (9)). Pursuant to section 52(1),a person cannot provide later years childminding for a child under the age of eight

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unless registered on Part A of the general childcare register maintained by the ChiefInspector. Paragraph 15 amends section 52 so that anyone registered with a lateryears childminder agency can also lawfully provide later years childminding. Similarly,paragraph 16 amends section 53 so that others offering later years provision ondomestic premises for a child under the age of eight can be registered with a later yearschildminder agency in respect of the premises and can therefore also lawfully offer lateryears provision.

357. Paragraphs 17 to 23 make amendments to the provisions of the CA 2006 whichdeal with the process of registration for later years childminders and other lateryears providers on domestic premises. The amendments provide for the possibility ofregistration with later years childminder agencies. The registration process will mirrorthat which applies to early years childminders and other early years providers who seekto register with an early years childminder agency, as described above by reference toparagraphs 6 to 10 of Schedule 4.

358. Paragraph 22 introduces a new section 57A into the CA 2006. It requires a childminderagency which is both an early years and later years agency, on request, to register aperson as a later years provider where that person is already registered with the agencyas an early years provider.

359. Paragraph 24 amends section 59 of the CA 2006. This is the later years equivalent tosection 44 of the CA 2006. This section allows the Secretary of State to make regulationsgoverning the activities of registered later years providers. These may cover issues suchas the welfare of children, suitability of persons and premises, complaints proceduresand the provision of information. Subsections (4) and (5) have been amended so as toallow regulations to confer powers or impose duties on later years childminder agencies,in particular the need to have regard to standards and other matters prescribed in theregulations. Subsection (6) has been amended to provide for allegations that a personhas failed to have regard to factors, standards and other matters to be taken into accountby an agency.

360. Paragraph 25 amends section 60 of the CA 2006 so that provisions relating toinspection apply only to childminders or other later years providers registered in Part Aof the general childcare register. New section 61E makes provision for inspections oflater years childminder agencies. Childminders registered with later years childminderagencies will not be subject to inspections under section 60. Instead, it is intended thatthey will be subject to regular monitoring visits from the agency they are registeredwith, where the agency will assess and report on the standards of care being delivered.New section 61E also allows for the Chief Inspector to inspect later years providersregistered with an agency as part of the agency’s inspection.

361. Paragraph 26 of the Schedule inserts a new Chapter 3A into Part 3 of the CA 2006,comprising new sections 61A to 61G, relating to the registration and regulation of lateryears childminder agencies.

362. The process of registration for later years childminder agencies and the ChiefInspector’s powers and obligations in respect of the registration and inspection of lateryears childminder agencies mirror those for early years childminder agencies. A specialprocedure has, however, been introduced for early years childminder agencies whonotify the Chief Inspector that they wish to operate as a later years childminder agency.Section 61C requires the Chief Inspector, on request, to register a person in Part A of thegeneral childcare register if that person is already registered in the early years registeras an early years childminder agency. This means that an agency need not go throughthe registration process twice.

363. Part 4 of Schedule 4 includes provisions to enable those already registered with achildminder agency in respect of early or later years provision to register provisionthat is otherwise exempt from registration at the same agency on a voluntary basis.Provision exempt from registration includes, for example, later years childminding for

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a child who has attained the age of eight, or early years or later years childminding inrespect of which the person is not required to be registered under Chapter 2 or 3 of theCA 2006. Part 4 introduces new section 65A into the CA 2006, which provides for asimplified application process for those already registered with a childminder agencywho wish to register in respect of provision that is otherwise exempt from registration.Section 67 is also amended to enable the Secretary of State to exercise his or her powerto make regulations governing activities of persons who register voluntarily so as toimpose duties or confer powers on childminder agencies as well as the Chief Inspector.

364. Part 5 of Schedule 4 includes provisions which apply to all childminder agencies.It includes provisions relating to cancellation and suspension of registration,disqualification from registration and removal from the registers. It also includesprovisions dealing with the Chief Inspector’s powers of entry, and powers and dutiesin relation to provision of information about providers. Provision is made relating tooffences and criminal proceedings.

365. Paragraph 33 amends section 68 (cancellation of registration) so that this section onlyapplies to childcare providers who are registered on the early years or general childcareregister. The cancellation of registration for persons registered with childminderagencies will be dealt with in regulations made under new section 69A. Newsection 69B deals with the cancellation of a childminder agency’s registration.

366. Paragraph 34 amends section 69 (suspension of registration) so that it only applies tochildcare providers on the early years or general childcare register. The suspension ofregistration for those registered with childminder agencies will also be dealt with inregulations made under new section 69A. New section 69C deals with the suspensionof a childminder agency’s registration.

367. Paragraph 35 introduces new section 69A which allows for the making of regulationsdealing with the cancellation, termination and suspension of a provider’s registrationwith a childminder agency. In particular, regulations may make provision for situationswhen a provider voluntarily terminates their registration with an agency. It also allowsfor offences to be created relating to things done while a person’s registration with anagency is suspended. Regulations may also make provision concerning how disputesare to be resolved between agencies and providers registered with them.

368. Section 69B deals with cancellation of the registration of a childminder agencyregistered on a childcare register. It requires the Chief Inspector to cancel registrationif a person becomes disqualified from registration and allows the Chief Inspectorto cancel registration where prescribed requirements for registration are not met,conditions of registration are not complied with or fees are not paid. Subsection(4) enables regulations to make provisions about the effect of cancellation of anagency’s registration on the providers registered with that agency. Regulations may,for example, enable providers to be provisionally registered with the Chief Inspector inthese circumstances so that they are able to continue to provide childcare as registeredproviders while they seek alternative registration with the Chief Inspector or anotherchildminder agency.

369. Section 69C enables the Secretary of State to make regulations allowing a person’sregistration as a childminder agency to be suspended for a particular period in certaincircumstances. Where a childminder agency has its registration suspended, it must notcarry out any functions of a childminder agency or represent that it is able to do so.Otherwise the agency will be committing an offence (see subsection (6)). Subsection(3) allows regulations to make provisions about the effect of an agency’s suspensionon the providers registered with that agency.

370. Paragraph 38 introduces new section 70A which allows childminder agencies to givenotice to the Chief Inspector when they wish to be removed from either of the registers.The Chief Inspector must remove from the register any agency which has given notice.However, the Chief Inspector may not remove the person if the Chief Inspector has

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already sent notice of intention to cancel registration and has not yet decided againstthat step or has already sent notice of a decision to cancel registration and the time forappeal is still running.

371. Section 72 enables the Chief Inspector to apply to a Justice of the Peace for an ordercancelling registration, varying or removing a registration condition or imposing a newcondition.Paragraph 40 amends section 72 so that the Chief Inspector can only makesuch an application in relation to providers on the early years or general childcareregister. Such an application cannot be sought by, or made in relation to, a childminderagency, or a childminder registered with a childminder agency. Regulations undersection 69A will set out the requirements for childminder agencies in terms of dealingwith providers’ registrations in situations where it appears that children in the care ofthose providers may be suffering or are likely to suffer significant harm. There is noequivalent provision for cancellation of registration or the imposition of conditions onchildminder agencies in an emergency as they will not be directly caring for children.

372. Paragraphs 43 and 44 make amendments to reflect that section 75 (disqualificationfrom registration) applies only to early years and later years providers and not tochildminder agencies (who are covered by the disqualification provisions in newsection 76A).

373. Paragraph 45 introduces new subsections (3A) to (3C) into section 76 which providethat an early years or later years childminder agency must not register any personwho is disqualified from registration under regulations made pursuant to section 75.Contravention of these prohibitions is an offence under subsection (4) although theseare subject to the defence at new subsection (6A).

374. Paragraph 46 introduces new sections 76A and 76B. New section 76A is largely basedon section 75 of the CA 2006. It provides for the Secretary of State to make regulationssetting out when a person may be disqualified from registration as a childminder agency.Subsection (3) enables regulations to be made allowing the Chief Inspector to waivedisqualification in certain circumstances.

375. Section 76B sets out the consequences of disqualification for childminder agencies.These are that a disqualified person must not exercise any functions of a childminderagency, purport to exercise such functions, or be a member of the governing body,director, manager or other officer of, or partner in, an agency or otherwise be directlyconcerned in the management of an agency. A disqualified person is also preventedfrom working for an agency in a capacity which involves entering premises on whichearly or later years provision is being provided. Subsection (2) prevents an agencyfrom employing a disqualified person in any capacity which involves direct concern inthe management of that agency or entering childcare premises. Contravention of theseprohibitions is an offence.

376. Paragraph 47 amends section 77 (which concerns the Chief Inspector’s powers ofentry) so that it applies only in relation to early and later years providers. Entry to thepremises of childminder agencies is dealt with in new section 78A. Subsection (2) ofsection 77 is amended so that the Chief Inspector may enter the premises of a providerregistered with a childminder agency for the purposes of conducting an inspection ofthe agency.

377. Paragraph 49 inserts new section 78A to give a person authorised by the ChiefInspector the power of entry, at any reasonable time, in respect of any premisesin England if he has reasonable cause to believe that a person on the premises isfalsely representing that it is an early years or later years childminder agency. It alsogives a power of entry in respect of the premises of any childminder agency at anyreasonable time (subsection (2)) for the purposes described in subsection (3), which areto conduct an inspection under section 51E or 61F, and to determine if conditions on,or requirements for, registration are being met. Under subsection (8) it is an offence

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intentionally to obstruct a person exercising powers under this section. Subsection (9)specifies the penalty for the offence, a fine not exceeding level 4 on the standard scale.

378. New section 78B deals with circumstances in which a power of entry conferred bysection 78A is exercisable on domestic premises. In the case of agencies, this wouldbe where an agency’s registered address is also domestic premises. If the premises arethe home of someone who is not employed by the childminder agency, or a member,manager, director or other officer of the agency, section 78B requires the consent of anadult occupying the property before a power of entry under the Act may be exercised(see subsection (2)).

379. Paragraph 51 amends section 82 of the CA 2006 to allow the Chief Inspector torequire from a childminder agency information about their activities as an agency. Theinformation is limited to that which the Chief Inspector considers it is necessary to havefor the purpose of his or her functions under Part 3. Subsection (2) provides that thispower includes a power for the Chief Inspector to require an early years or later yearschildminder agency to provide him or her with information about an early years or lateryears provider registered with the agency.

380. Paragraph 53 introduces new section 83A to require childminder agencies to give theSecretary of State, HMRC and the relevant local authority information (to be prescribedin regulations) when it takes certain steps under Part 3, such as registering a childcareprovider. The information which may be prescribed is, in the case of the Secretary ofState, information that the Sectary of State may require for the purposes of functions inrelation to universal credit under Part 1 of the Welfare Reform Act 2012, in the case ofHMRC, information relevant to their functions relating to tax credits and, in the case oflocal authorities, information which would assist them in the running of the informationservice which they are required to establish under section 12 of the CA 2006.

381. Paragraph 55 inserts new section 84A to allow childminder agencies to makeprescribed information about registered persons available (to such persons and in suchmanner as they feel appropriate) for the purposes of assisting parents in choosinga childcare provider and protecting children from harm and neglect. Subsection (3)enables the Secretary of State to make regulations requiring childminder agencies toprovide prescribed information about registered persons to prescribed people for eitherof those purposes. This could include, for example, passing information to the policeor other child protection agencies for the purpose of protecting children from harm.

382. Paragraph 58 amends section 89 so that regulations concerning fees payable to theChief Inspector relating to the exercise of his or her functions under Part 3 apply only tothose on the early years or general childcare registers (that is, childminder agencies andchildcare providers registered by the Chief Inspector). Fees for providers registeringwith childminder agencies will not be prescribed and agencies will be able to set theirown fees in respect of the services they will provide.

383. For the purpose of making decisions about registration, it may be necessary for theChief Inspector to obtain information from third parties which relates to an applicantfor registration or a registered person (or from other persons who may be caring forthe children concerned). Section 90 enables the Secretary of State to make regulationsallowing the Chief Inspector to refuse or to cancel registration if consent from the personwhom the information concerns to the disclosure of that information by third parties iswithheld or consent is withdrawn. Paragraph 59 extends section 90 so as to encompassthe registration of childminder agencies.

384. Section 98 of the CA 2006 is amended by paragraph 62 to provide a definition of“childminder agency”, “early years childminder agency” and “later years childminderagency.” New subsection (1A) is inserted so as to make clear that a person is registeredfor the purposes of Part 3 of the Act if they are registered on either of the early yearsor general childcare registers or they are registered with an early years or later yearschildminder agency.

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385. Part 6 of the Schedule (other amendments) includes, at paragraph 63, an amendment tosection 99. Section 99(1) allows regulations to make provision requiring all registeredearly years providers, and school-based providers who are exempted from registrationrequirements by section 34(2), to provide “individual child information” (as defined inthat section) to the Secretary of State or any prescribed person. Paragraph 63 extendsthat provision to ensure that early years childminder agencies can also be required, byregulations, to provide certain individual child information to prescribed persons.

386. Paragraph 64 makes an amendment to the Employment Agencies Act 1973 so thatchildminder agencies are exempted from that Act. As childminder agencies will besubject to regulation by the Chief Inspector, and by regulations made under the CA2006, this exemption also means that they are not subjected to a further regulatoryregime.

Section 85: Inspection of providers of childcare to young children

387. This section amends section 49 of the CA 2006, which relates to the inspection of earlyyears childcare provision. It enables the Chief Inspector to charge a fee for an inspectionthat is carried out at the request of the provider, where that inspection is also requiredby the Secretary of State. Equivalent provision enabling the Chief Inspector to chargea fee for the re-inspection of childminder agencies is made by paragraphs 13 and 26 ofSchedule 4, which introduce new sections 51D(3) and 61E(3) respectively.

Section 86: Repeal of local authority’s duty to assess sufficiency of childcareprovision

388. This section repeals the duty in section 11 of the CA 2006 on English local authoritiesto prepare, at least every three years, an assessment of the sufficiency of the provisionof childcare in their area.

Section 87: Discharge of authority’s duty to secure free early years provision

389. This section makes provision for regulations to be made about the discharge of the dutyon local authorities to secure free early years provision for young children. Under suchregulations, a requirement is imposed on local authorities to meet this duty by securingearly years provision at any provider which meets the description in regulations, whichmeets the terms of funding, and where a parent of an eligible child wishes to send thatchild. Regulations may also be made specifying the conditions local authorities mayand may not attach to the arrangements they make to discharge this duty.

Section 88: Governing bodies: provision of community facilities

390. This section removes the requirements in section 28(4) and (5) of the Education Act2002 for maintained schools in England (it preserves the effect of the section in respectof Wales).

391. Section 27 of the Education Act 2002 gives the governing bodies of maintained schoolsthe power to make available facilities or services of the school for the benefit of theschool’s pupils and their families, and the people who live or work locally. Theseservices might take the form of childcare before or after the school day, for example.Previously, if maintained schools wanted to make this kind of provision, section 28(4)of the Education Act 2002 required their governing bodies to consult with their localauthority, their staff, and the parents of pupils registered at the school. In addition,section 28(5) of the Education Act 2002 required the governing bodies of maintainedschools in England to have regard to advice or guidance from the Secretary of State ortheir local authority when offering this type of provision.

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Section 89: Childcare costs scheme: preparatory expenditure

392. This section enables HMRC to incur expenditure in preparing for the introduction of ascheme for providing assistance in respect of the costs of childcare.

393. The Government has announced that it intends to introduce a new tax-free childcarescheme to assist working families in meeting the costs of formal childcare. Furtherlegislation will be introduced as required setting out the details of the scheme.

PART 5 – WELFARE OF CHILDREN

Section 90: Extension of licensing of child performances to children under 14

394. This section repeals section 38 of the Children and Young Persons Act 1963 in relationto England and Wales. The effect of that repeal is to remove restrictions on thecircumstances in which a local authority can issue a performance licence to a childunder the age of 14.

Section 91: Purchase of tobacco etc. on behalf of persons under 18

395. This section introduces an offence in England and Wales of “proxy purchasing” oftobacco products and cigarette papers. This makes it an offence for a person aged 18 orover to buy, or attempt to buy, tobacco or cigarette papers on behalf of a person underthe age of 18. If found guilty of an offence, the penalty is a fine not exceeding level 4on the standard scale. This section also provides local authority enforcement officerswith the flexibility to issue fixed penalty notices if they believe an offence has beencommitted. To enable effective enforcement, the section provides enforcement officerswith powers of entry.

396. These provisions apply to England and Wales.

Section 92: Prohibition of sale of nicotine products to persons under 18

397. This section provides the Secretary of State with the power to make regulations toprohibit the sale of nicotine products to persons under the age of 18.

398. Subsections (9) to (11) explain what is meant by nicotine products. Examples of nicotineproducts include an electronic cigarette and part of an electronic cigarette. Tobaccoproducts, which are already subject to a prohibition on sale to persons aged under 18,are not nicotine products for the purposes of this section. The powers at subsection (7)enable the Secretary of State to provide for exceptions or to make provision in relationto nicotine products of a specified kind or all nicotine products.

399. There is an exemption for under 18s employed in the industry and a due diligencedefence. The penalty for committing the offence is a fine not exceeding level 4 on thestandard scale. These provisions apply to England and Wales.

400. Regulations made under these powers will be subject to the affirmative parliamentaryprocedure and the Secretary of State must obtain the consent of the Welsh Ministersbefore making regulations under this section which would be within the legislativecompetence of the National Assembly for Wales.

Section 93: Amendments consequential on section 92

401. This section makes consequential amendments to integrate the new age of sale offencefor nicotine products into the existing age of sale legislation for tobacco products.Consequential amendments to section 5 of the Children and Young Persons (Protectionfrom Tobacco) Act 1991 apply the enforcement regime for tobacco age of sale offencesto an offence under section 92. Consequential amendments to sections 12A to 12D ofthe Children and Young Persons Act 1933 integrate the offence under section 92 intothe existing regime for repeated tobacco age of sale offences.

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Section 94: Regulation of retail packaging etc of tobacco products

402. This section gives the Secretary of State the power to make regulations about specifiedelements of the retail packaging of tobacco products and the products themselves wherehe or she considers that the regulations may contribute to reducing the risk of harm to,or to promoting, the health or welfare of children.

403. These provisions apply to the whole of the UK. Regulations made under these powerswill be subject to the affirmative parliamentary procedure and the Secretary of Statemust obtain the consent of the Scottish Ministers, Welsh Ministers, or Office of the FirstMinister or Deputy First Minister of Northern Ireland, where they contain provisionswhich would be within the legislative competence of their respective Parliament orAssembly.

Section 95: Smoking in a private vehicle

404. This section amends smoke-free legislation (the Health Act 2006) to provide theSecretary of State, or Welsh Ministers in relation to Wales, with the power to makeregulations to provide for a private vehicle to be smoke-free when a person under the ageof 18 is present in the vehicle. The Health Act 2006 contains two offences in relation tovehicles that are designated as smoke-free under the regulations: smoking in a smoke-free vehicle and failure by the person in control of the vehicle to prevent smoking ina smoke-free vehicle.

405. The Health Act 2006 includes a power to provide for penalty notices in relation to theoffence of smoking in a smoke-free vehicle and this section amends that Act to allowpenalty notices to also be used for the offence of failing to prevent smoking in a vehiclewhen a person under the age of 18 is present.

406. All regulations made under these powers will be subject to the affirmative parliamentaryprocedure.

Section 96: Young carers

407. This section consolidates existing rights for young carers, in particular from the Carers(Recognition and Services) Act 1995 and the Carers and Disabled Children Act 2000,and insert new sections into Part 3 of the Children Act 1989.

408. This section also extends the right to an assessment of needs for support to all youngcarers under the age of 18 regardless of who they care for, what type of care they provideor how often they provide it. It requires a local authority to carry out an assessment of ayoung carer's needs for support on request or on the appearance of need, and provides forlocal authorities to combine the assessment of a young carer with an assessment of theperson they care for. Previously, a young carer had to request such an assessment. Thesection enables the Secretary of State to make regulations making provision about thecarrying out of a young carer’s needs assessment. Those regulations may, in particular,specify matters to which a local authority is to have regard or is to determine in carryingout the assessment, the manner in which an assessment is to be carried out and the formthat assessment is to take.

Section 97: Parent carers

409. This section consolidates into Part 3 of the Children Act 1989 existing legislation, inparticular the Carers and Disabled Children Act 2000, which gives individuals withparental responsibility for a disabled child the right to an assessment of their needs by alocal authority. This consolidation simplifies the legislation relating to parent carers ofdisabled children, making rights and duties clearer to both parent and practitioners. Itremoves the requirement for such carers to be providing “a substantial amount of careon a regular basis” in order to be assessed, and requires local authorities to assess onthe appearance of need, as well as on request.

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410. This section requires local authorities explicitly to have regard to the well-being ofparent carers in undertaking an assessment of their needs. The definition of well-beingwill be the same as in Part 1 of the Care Act 2014 (subject to Parliamentary approvalof the Care Act).

411. This section enables the Secretary of State to make regulations making provisionabout the carrying out of a parent carer’s needs assessment. Those regulations may, inparticular, specify matters to which a local authority is to have regard or is to determinein carrying out the assessment, the manner in which an assessment is to be carried outand the form that assessment is to take.

Section 98: Arrangements for living with former foster parents after reachingadulthood

412. This section inserts a new section 23CZA into the Children Act 1989. Newsection 23CZA sets out what constitutes a staying put arrangement, the duties placedon local authorities for the duration of the arrangement and the conditions that underpinthe support from the local authority. Section 23CZA(2) provides that a staying putarrangement is one where the young person is someone who was in care immediatelyprior to their 18th birthday as an eligible child, and that person continues to reside withtheir former foster carer once they turn 18.

413. So long as the arrangement is consistent with the welfare of the young person, the localauthority is required to provide advice, assistance and support to them and their formerfoster parent to support the maintenance of the arrangement. The local authority is alsorequired to monitor the arrangement (section 23CZA(3)).

414. The support provided to the former foster carer must include financial support(section 23CZA(4)).

415. Subsection (3) inserts a new paragraph 19BA into Schedule 2 to the Children Act1989 which places a duty on local authorities to determine once the child becomes aneligible child, the appropriateness of working towards facilitating a future staying putarrangement.

416. These duties will continue until the young person reaches the age of 21 unless eitherthey or their former foster parent decides to end the arrangement sooner.

Section 99: Promotion of educational achievement of children looked after by localauthorities

417. Section 22 of the Children Act 1989 places a general duty on local authorities tosafeguard and promote the welfare of the children they look after. Section 22(3A)places a particular duty on local authorities in England to promote the educationalachievement of the children they look after, regardless of where they are placed. Manylocal authorities in England have an education lead to champion the needs of lookedafter children. They are often referred to as “Virtual School Heads” (VSH), becausethey monitor and track the educational progress of the children looked after by theirauthority as if they attended a single school.

418. This section amends section 22 by inserting new subsections (3B) and (3C). Subsection(3B) requires every local authority in England to appoint an officer employed by theauthority to make sure the duty under section 22(3A) is properly discharged. Subsection(3C) requires that the person appointed under subsection (3B) is an officer employedby that local authority or another local authority in England.

419. The section makes explicit reference to permitting a local authority to appoint morethan one officer to perform this role.

420. There is existing statutory guidance from the Department for Education, issued undersection 7 of the Local Authority Social Services Act 1970, about how local authorities

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should discharge their duty to promote the education of their looked after children. Thisguidance will be revised to take account of this new provision. The revised guidancewill also explain the relationship between the functions of the appointed officer carryingout the role of the Virtual School Head and the Director of Children’s Services (“DCS”).In effect, the DCS, who is appointed for the purposes of the authority’s social servicesfunctions relating to children, is responsible for promoting the educational achievementof the children looked after by the authority. The appointed officer or VSH and theservice he or she manages will be responsible for how this is achieved.

Section 100: Duty to support pupils with medical conditions

421. This section places a duty on governing bodies of maintained schools, proprietors ofAcademies and management committees of pupil referral units to make arrangementsfor supporting pupils at school with medical conditions. In meeting that duty, the sectionrequires all of those bodies to have regard to guidance issued by the Secretary of Stateunder this provision.

Section 101: Local authority functions relating to children etc: intervention

422. This section clarifies the law in relation to the Secretary of State’s power to interveneunder section 497A(4A) of the Education Act 1996 and section 50 of the Children Act2004, where a local authority is failing to deliver services to an adequate standard. Thesection ensures that these powers would be exercised effectively, in particular in theinterests of certainty for children who may be taken into care or placed for adoption.

423. Parallel amendments are also made to the Secretary of State’s power to intervene undersection 15 of the Local Government Act 1999 where he or she is satisfied that a bestvalue authority is failing to comply with the requirements of Part 1 of that Act.

424. Subsection (2) amends section 497A of the Education Act 1996 to clarify the effectof the power in section 497A(4A) of that Act. This puts beyond doubt that eitherthe Secretary of State or a nominee, exercising functions in place of a local authoritypursuant to a direction under section 497A(4A) of the Education Act 1996 can, forexample, apply for or be named in care orders under section 31 of the Children Act1989, exercise the adoption related functions set out in section 92(2) of the Adoptionand Children Act 2002 and exercise certain other court-related functions in the sameway as a local authority. The section makes it clear that, following such a direction,other relevant references in legislation to a “local authority”, such as in relation to theChief Inspector’s functions and powers under sections 136 to 141 of the Education andInspections Act 2006, are to be read as references to the Secretary of State or a nominee.

425. Subsection (3) amends section 15 of the Local Government Act 1999 to clarify theeffect of the power in section 15(6) of that Act. This clarifies the Secretary of State’sintervention powers under that Act in the same way as subsection (2) does in relationto the Secretary of State’s power in section 497A(4A) of the Education Act 1996.

Section 102: Application of suspension etc powers to establishments and agenciesin England

426. This section makes available to the Chief Inspector the powers in sections 14A and20B of the Care Standards Act 2000 to suspend a person’s registration in respect ofan establishment or agency in England. At present these powers are only available toWelsh Ministers in respect of establishments or agencies in Wales. If a registered personcontinued to operate a setting whilst suspended, they would commit a criminal offence.This section clarifies the Chief Inspector’s enforcement powers so action can be takenif, for example, it has serious concerns about the safety and care provided by a regulatedsetting, such as a children’s home, that require an urgent response.

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Section 103: Objectives and standards for establishments and agencies in England

427. This section adds a new subsection (1A) into section 22 of the Care Standards Act2000. It provides for the Secretary of State to have a power to make regulations toprescribe objectives and standards that must be met by an establishment or agency thatis regulated by the Chief Inspector. This includes children’s homes.

Section 104: National minimum standards for establishments and agencies inEngland

428. This section amends section 23 of the Care Standards Act 2000, which is concernedwith “national minimum standards” (NMS). The section inserts a new section (1A) intosection 23 of the Care Standards Act 2000. It provides that the NMS applicable to anestablishment or agency regulated by the Chief Inspector, such as a children’s home,may explain and supplement regulations made under section 22 of the Care StandardsAct 2000.

Section 105: Disqualification from carrying on, or being employed in, a children’shome

429. This section amends section 65 of the Children Act 1989, which provides for personswho are disqualified from private fostering under section 68 of that Act to bedisqualified from carrying on, managing or having a financial interest in children’shomes. This section introduces, in relation to England, a time limit for a person todisclose to the Chief Inspector that they have been disqualified from private fostering.

Section 106: Provision of free school lunches

430. This section amends Part 9 of the Education Act 1996 in relation to the provision ofschool lunches. It ensures that all state-funded schools – both maintained schools andAcademies – have an obligation to provide free school lunches on request for all pupilsin infant classes (i.e reception, year one and year two). It also creates an enabling powerfor the Secretary of State to extend this obligation to other school year groups or tochildren in maintained nursery schools and other state-funded early years settings.

431. For maintained schools, this new obligation will sit alongside the existing statutoryobligations imposed on them in respect of the provision of school lunches. ForAcademies, the section inserts a new provision requiring all future Academies (wherefunding agreements are entered into after this amendment comes into effect) to have aprovision in their funding agreement that mirrors the school lunch obligations placed onmaintained schools; and all funding agreements entered into before this section comesinto effect must be read as if they included this requirement.

Part 6 - the Children’s Commissioner

Section 107: Primary function of the Children’s Commissioner

432. Section 107 replaces section 2 of the Children Act 2004 (“the 2004 Act”) with newsections 2 to 2C, and changes the primary function of the Commissioner from oneof “promoting awareness of the views and interests of children in England” to oneof “promoting and protecting the rights of children in England”. The Commissioner’sremit also covers non-devolved matters in Scotland, Wales and Northern Ireland as setout in paragraph 3 of Schedule 5.

433. The role of promoting children’s rights entails raising awareness of children’s rightsand how they should be applied.

434. The role of protecting children’s rights should, in practice, mean that the Commissioneris able to challenge any policy or practice which he or she considers may lead, or has led,to an infringement or abuse of children’s rights, and provide evidence of any negative

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impact of those policies and practices on children’s rights to those who are responsibleand have sufficient standing to bring about change. The Commissioner does not havethe power to require a change to that policy or practice.

435. Promoting awareness of children’s views and interests continues to form part of theprimary function, as it remains important that children’s views inform any commentsor recommendations that the Commissioner makes. Section 2(2) achieves this byproviding that the function of promoting awareness of the views and interests ofchildren is an aspect of the primary function of promoting and protecting children’srights.

436. Section 2(3) lists some of the activities that the Commissioner may undertake inexercising the primary function. The list is not exhaustive and therefore does not placea limit on the activities the Commissioner may undertake. Many of the activities listedare carried forward from the previous legislation and updated to reflect the new primaryfunction:

• Paragraph (a) concerns the provision of advice to relevant persons on how toact compatibly with children’s rights. This aspect of the primary function islikely to involve making recommendations to change policies or practices that theCommissioner considers have infringed or may infringe children’s rights;

• Paragraph (b) sets out that the Commissioner may also encourage relevant personsto take account of children’s views and interests. This aspect of the Commissioner’srole could include providing both general guidance on how best to involve childrenin the decision-making processes of organisations; and highlighting specificexamples of points children have raised in the course of a particular investigationthat the Commissioner has undertaken;

• Paragraph (c) carries forward a similar provision from the 2004 Act and extendsit to cover “rights” (as well as views and interests) to reflect the change to theCommissioner’s primary function;

• Paragraph (d) makes clear that in the discharge of the primary function, theCommissioner can assess the potential impact that proposed new policies orlegislation may have on children’s rights. It will be for the Commissioner todetermine whether to carry out such assessments and on which issues;

• Paragraph (e) makes it clear that the Commissioner may, in particular, bring anymatter to the attention of Parliament. Relevant matters could be raised, for example,through the Commissioner’s annual report to Parliament or by writing to the chairof a relevant Select Committee;

• Paragraphs (f), (g) and (h) reflect similar provisions in the 2004 Act. In eachprovision, the words “consider or research” have been replaced with “investigate”.In addition, paragraph (g) contains a new provision, linked to paragraph (f),that concerns investigations of the availability and effectiveness (rather than“operation”) of advocacy services for children. In carrying out these activities, theCommissioner will want to be satisfied that there is adequate provision in place,and that services are easily accessible, and respond effectively to the issues raisedby children;

• Paragraph (h) broadly replicates a provision from the 2004 Act, clarifying that theCommissioner has wide discretion over other matters that he or she chooses toinvestigate, but provides for this to cover the rights (as well as the interests of)children – to reflect the change to the Commissioner’s primary function;

• Paragraph (i) makes clear that the Commissioner’s primary function of promotingand protecting rights may include reporting on the implementation of the UnitedNations Convention on the Rights of the Child (UNCRC) in England (and, undersections 5 to 7, in Wales, Scotland and Northern Ireland, as regards non-devolved

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matters). Formal reporting to the UN Committee remains the responsibility of theState Party, but this provision makes it clear that the Commissioner may carry outhis or her own independent assessments;

• Paragraph (j) confirms that the Commissioner is able to publish a report on anymatter that he or she has considered or investigated under the Commissioner’sprimary function. It will be for the Commissioner to determine whether to publisha report.

437. Section 2(4) requires the Commissioner - when exercising the primary function - to haveparticular regard to promoting and protecting the rights of: the categories of childrendefined in new section 8A (certain vulnerable children); and other children whom theCommissioner determines are at particular risk of their rights being infringed. Thedefinition of children in section 8A (inserted into the 2004 Act by section 114) coverschildren and young people who previously fell within the remit of the Children’s RightsDirector, whose general functions are incorporated into those of the Commissioner bythis Act. This includes children receiving social care services or who live away fromhome for significant periods of time, such as children in residential special schools,residential FE colleges and boarding schools.

438. In addition, there are other groups of children who may be at particular risk of havingtheir rights infringed – for example children in custody. Section 2(4) therefore alsorequires the Commissioner to give particular attention to groups of children who are atparticular risk of their rights being infringed. It is for the Commissioner to determinewhich other groups of children fall within this subsection, and how to act in order topromote and protect their rights.

439. Section 2(5) provides that the Commissioner continues to be prohibited fromconducting investigations into the case of an individual child. The intention is that theCommissioner will concentrate on strategic issues that affect a number of children,rather than provide a general ombudsman service for individual children. There maybe circumstances however where the Commissioner could properly respond to queriesfrom or about individual children that are relevant to the exercise of the primaryfunction. The Commissioner will be able to provide advice and assistance (as set out insection 2D) to children defined in section 8A.

2A United Nations Convention on the Rights of the Child (UNCRC)

440. Section 2A(1) (inserted into the 2004 Act by section 107) provides that theCommissioner must have particular regard to the UNCRC and any Optional Protocolswhich are in force in relation to the United Kingdom (subject to any reservations,objections or interpretative declarations by the United Kingdom), when consideringwhat constitutes children’s rights and interests. As Article 41 of the UNCRC makesclear, where other rights exist in domestic law or international law applicable to thatState, which afford children greater protection than the UNCRC, these should apply.

Section 2B: Involving children in the discharge of the primary function

441. Section 2B (inserted into the 2004 Act by section 107) requires the Commissioner totake reasonable steps to involve children in his or her work, and to provide childrenwith information about the Commissioner’s role and how they can raise issues withhim or her. Provision is made for children to be consulted on the activities that theCommissioner intends to undertake in the discharge of the primary function. Section2B(3) requires the Commissioner (when involving children in the discharge of theprimary function) to have particular regard to children within new section 8A, andchildren who do not have other adequate means to make their views known. It will befor the Commissioner to determine which children fall into the latter category.

442. It is for the Commissioner to decide how best to make children aware of his orher role and activities, and to put in place arrangements that allow children to

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contact the Commissioner and comment on his or her proposed work programme.The Commissioner may also wish to use other organisations which have an interest inchildren’s rights as a conduit for seeking the views of children, to avoid duplication andto make best use of available resources.

Section 2C: Primary function: reports

443. New section 2C (inserted into the 2004 Act by section 107) relates to reports that theCommissioner publishes following any investigations that he or she has undertaken incarrying out the primary function. Subsection (2) requires the Commissioner to publisha report in a child-friendly format where the Commissioner considers it appropriateto do so. Under subsection (3), it is open to the Commissioner to require personsexercising functions of a public nature to set out in writing, within a time periodspecified by the Commissioner, what action they are taking or proposing to take inresponse to recommendations. A person is not obliged to accept recommendations thatthe Commissioner makes, but if they do not intend to implement a recommendation,they should set out in writing the reasons for not doing so.

Section 108: Provision by Commissioner of advice and assistance to certainchildren

444. New section 2D (inserted into the 2004 Act by section 80) provides for a new powerthat enables the Commissioner to provide advice and assistance to children and youngpeople defined in new section 8A. This enables the role previously carried out by theChildren’s Rights Director to be carried forward under the new arrangements. Section116 provides for the abolition of the office of Children’s Rights Director, alongsiderelevant transfers to the Commissioner’s office.

445. In practice, it is not envisaged that this will involve providing a full casework function.The advice and assistance role will normally entail signposting the individual to anexisting complaints process, or making representations on their behalf to the relevantorganisation, with a view to resolving the matter informally.

Section 109: Commissioner’s power to enter premises

446. This section inserts a new section 2E into the 2004 Act. This broadly replicates theCommissioner’s previous power to enter premises where children are accommodatedor cared for, in order to interview children, and applies to the exercise of the primaryfunction and new section 2D. This provision does not extend to private dwellings,but applies in respect of any part of a premises which is not a private dwelling. Newsection 2E(2)(b) and 2E(4) provide that the Commissioner or his or her representativecan observe the facilities and standards of care provided and interview persons workingat the establishment. These provisions have no impact on the Commissioner’s capacityto interview children in situations other than where the power to enter premises is beingused.

Section 110: Provision of information to Commissioner

447. This section inserts a new section 2F into the 2004 Act, which broadly replicates theprevious provision. It places a duty upon persons exercising functions of a public natureto provide the Commissioner with information that the Commissioner requests as longas: the request is reasonable; and it is information that the body is able to discloselawfully to the Commissioner. The effect of section 2F is, for example, that where aperson exercising functions of a public nature has discretion to disclose confidentialinformation under other legislation, it must do so, so long as the request is reasonable.However, it does not create a legal gateway that overrides other legislation, for example,where that legislation restricts disclosure of confidential information to certain specifiedpersons or for certain purposes.

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Section 111: Advisory board

448. New section 7A (inserted into the 2004 Act by section 111) imposes a new requirementon the Children’s Commissioner to appoint an advisory board, the purpose of whichis to provide advice and assistance to the Commissioner. It is for the Children’sCommissioner to decide who to appoint to the board, but subsection (2) requires theboard’s membership, when taken together, to represent a broad range of intereststhat are relevant to the functions of the Children’s Commissioner. The role of theboard is advisory only and ultimately it will be the responsibility of the Children’sCommissioner (rather than the advisory board) to determine how to exercise his orher functions. The aim of the advisory board is to make the Commissioner’s businessplanning processes more transparent and to ensure that his or her activities add value,rather than duplicate, the work of other organisations with an interest in children’srights. It is for the Children’s Commissioner to determine whether to appoint a separatechairperson from among the members of the advisory board, or to chair the advisoryboard him or herself. Subsection (3) requires the Commissioner to publish details of theprocess through which appointments to the advisory board will be made and the criteriaused to select members. The intention is to ensure that the process by which individualsare selected is open and transparent.

Section 112: Business plans

449. New section 7B (inserted into the 2004 Act by section 112) imposes requirementson the Children’s Commissioner to consult on, and then publish, a business plan.Subsection (1) sets out what should be included in the business plan. Subsections(2) and (3) set out the time period that the business plan should cover and when itshould be published. Subsection (4) requires the Commissioner to consult childrenand bodies which represent a range of relevant interests and other persons who theCommissioner considers appropriate on the content of the business plan before it ispublished. Subsection (5) provides that when consulting children, the Commissionershould, in particular, take steps to consult children falling within section 8A and otherchildren who do not have adequate means to make their views known.

Section 113: Annual reports

450. This section amends section 8 of the 2004 Act, which is concerned with theCommissioner’s annual report. The annual report provides a key mechanism throughwhich Parliament has the opportunity to scrutinise the Commissioner’s activities andimpact. The annual report provides an overview of the Commissioner’s activities ratherthan being a vehicle through which the Commissioner makes recommendations forchange in specific areas; which will be contained in the separate reports that theCommissioner chooses to publish following his or her investigations or inquiries.

451. Accordingly, section 8 requires the Commissioner to report annually on the mainactivities that he or she has undertaken and what impact these activities have had onthe promotion and protection of children’s rights. New subsection (2)(b) and (c) requirethe Commissioner to include in the annual report information on: the actions that heor she has taken to support children falling within section 8A; and an account of howthe Commissioner has consulted or otherwise involved children in the discharge of hisor her functions.

452. Subsection (2)(a) of the section amends section 8(1) of the 2004 Act to provide thatthe annual report must address how the Commissioner has discharged all his functions.New subsection (2)(d) has been included to ensure that actions the Commissioner takesas a result of consulting or otherwise involving children are also summarised in theannual report. Subsections (4) and (5) provide for the Commissioner to lay the annualreport before both Houses of Parliament, rather than through the Secretary of State, aswas previously the case. The Commissioner is responsible for publishing, publicising

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and disseminating the report, as appropriate. Subsection (6) requires the Commissionerto ensure that a child-friendly version of the annual report is available.

Section 114: Children living away from home or receiving social care

453. This section inserts a new section 8A which defines, for the purposes of theCommissioner’s functions, specific groups of children and young people whom theCommissioner:

• Should have particular regard to, when discharging the Commissioner’s primaryfunction (as set out in section 2(4));

• Should have particular regard to, when taking steps to involve children in thedischarge of the Commissioner’s primary function (as set out in section 2B);

• Can provide advice and assistance to (as set out in section 2D);

• Should have particular regard to, when consulting on the Commissioner’s businessplan (as set out in section 7B(5)).

454. The annual report must also set out how the Commissioner has had particular regard tothis group, in exercising his or her functions.

455. The children defined by this section includes all those children and young people whopreviously fell under the remit of the Children’s Rights Director.

Section 115 and Schedule 5: Minor and consequential amendments

456. Schedule 5 makes minor and consequential amendments to Part 1 of the Children Act2004, and a consequential amendment to the Criminal Justice and Courts Services Act2000.

Inquiries

457. Paragraph 1(2) of Schedule 5 removes the requirement on the Commissioner to consultthe Secretary of State before holding an inquiry under section 3 of the 2004 Act; andparagraph 2(1) removes the Secretary of State’s power to direct the Commissioner toconduct an inquiry. Paragraph 2(2) makes consequential amendments to provisions inthe 2004 Act that remove the power of the Secretary of State to direct the Commissionerto undertake an inquiry into the case of an individual child in Wales, Scotland orNorthern Ireland. The purpose of these changes is to address concerns raised by JohnDunford and others which called into question the Commissioner’s independence fromGovernment which had potentially damaged the Commissioner’s credibility. It will befor the Commissioner to determine how to respond to a request from the Secretary ofState to undertake a particular activity.

Functions of Commissioner in respect of Wales, Scotland and Northern Ireland

458. Paragraphs 3, 4and5 amend sections 5, 6 and 7 of the 2004 Act to apply (with certainmodifications) the changes to the Commissioner’s functions to his or her functions inrespect of non-devolved matters in Northern Ireland, Scotland and Wales.

Young persons

459. Paragraph 6(1) substitutes a new section 9 in the 2004 Act. Its purpose is to enable theCommissioner to exercise his or her functions in relation to young persons in Englandwho are aged 18 or over for whom an EHC plan is maintained by a local authority(as to which, see Part 3 of the Act); who are aged 18 or over and under 25 and towhom services have been provided by a local authority under any of sections 23C to24D (which relates to certain children and young people defined in section 8A) of theChildren Act 1989.

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460. New section 9(3) makes provision in respect of the Commissioner’s functions in Wales,Scotland and Northern Ireland. In this case, a child includes a young person who isaged 18 or over and under 25 who has a learning disability (as defined); or who hasbeen looked after by a local authority in Wales, Scotland or Northern Ireland at anytime after the age of 16.

461. Paragraph 6(2)is intended to preserve the effect of section 9 as it applied beforesubstitution under this Act.

Appointment and tenure of the Children’s Commissioner

462. Paragraph 7 of Schedule 5 amends paragraph 3(2) of Schedule 1 to the 2004 Act,strengthening the requirement on the Secretary of State to involve children in theCommissioner’s appointment, by requiring him or her to “take reasonable steps” toinvolve them.

463. Provision is also made to address a concern raised in John Dunford’s report, “Reviewof the Office of the Children’s Commissioner (England)”, namely that the abilityfor a Commissioner to be appointed for a second term might compromise his or herindependence. The Children’s Commissioner will be now appointed for a single, six-year term. There is no longer an option to renew the Commissioner’s appointment atthe end of his or her term of office.

Interim Appointments

464. Paragraph 8 inserts a new paragraph 3A into Schedule 1 to the 2004 Act, which makesprovision for appointing an interim Children’s Commissioner and sets out the processthat should be followed. This provision is introduced as a consequence of removingthe requirement on the Commissioner to appoint a Deputy Children’s Commissionerand will apply where the current Children’s Commissioner resigns, is dismissed (inline with the provisions set out in paragraph 3(7) of Schedule 1 to the 2004 Act), or isotherwise unable to continue in post.

465. Where such a situation arises, a recruitment exercise to appoint a new substantiveChildren’s Commissioner should begin at the earliest opportunity. However, it ispossible that recruiting a new substantive Children’s Commissioner could take sometime and paragraph 8 therefore provides for the Secretary of State to appoint an interimChildren’s Commissioner to provide continuity and stability in the intervening period.Sub-paragraph (2) provides that the terms and conditions of any interim appointmentwill be determined by the Secretary of State.

466. Paragraph 3(3) provides that the interim appointment should cease either:

• At the point that a new substantive Commissioner is appointed; or,

• If sooner, 6 months after the date that the interim appointment is made.

467. If, for any reason, the recruitment of a new substantive Commissioner cannot becompleted within 6 months, sub-paragraph (4) enables the Secretary of State to renewthe interim appointment for up to a further 6 months. Sub-paragraph (4) also providesthat a person who has been appointed as the interim Children’s Commissioner cansubsequently be appointed as the new substantive Commissioner (following the processrequired under paragraph 3 of Schedule 1).

468. Paragraph 3(5) and (6) make provision in relation to resignation and removal fromoffice of the interim Children’s Commissioner which is equivalent to the provision forthe Children’s Commissioner.

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Deputy Children’s Commissioner

469. Paragraph 9 amends paragraph 5 of Schedule 1 to the 2004 Act, so as to remove therequirement on the Commissioner to appoint a deputy. It will be for the Commissionerto determine his or her office’s staffing structure. Paragraph 9(2) makes consequentialamendments.

Section 116: Repeal of requirement to appoint a Children’s Rights Director

470. Subsection (1) repeals the provision in the Education and Inspections Act 2006 whichrequired the Chief Inspector to appoint a Children’s Rights Director.

471. Subsection (2) amends provisions in that Act to take account of this change and, inparticular, to place requirements on the Chief Inspector and the Office for Standardsin Education, Children’s Services and Skills (Ofsted) to have regard to any mattersraised by the Children’s Commissioner. In general, the purpose of these provisions is toensure that the views and interests of children within the Children’s Rights Director’sremit continue to inform the work of the Chief Inspector and the Office for Standardsin Education, Children’s Services and Skills but they will also extend more generallyto cover any matters raised by the Children’s Commissioner.

472. Subsection (3) introduces Schedule 6, which provides for the Secretary of State to makea scheme enabling certain staff and property to be transferred from Ofsted to the staffof the Children’s Commissioner.

Schedule 6: Repeal of requirement to appoint a Children’s Rights Director:Transfer schemes

473. Paragraph 1 contains a power for the Secretary of State to make a scheme in relation todesignated members of staff who are members of staff of Ofsted to become membersof staff of the Children’s Commissioner. The Schedule provides that the scheme maycontain provisions as to continuity of employment.

474. Paragraph 2 contains a power for the Secretary of State to make a property transferscheme, transferring to the Children’s Commissioner any property, rights and liabilitiesof Ofsted.

475. Paragraph 3 provides that for the purposes of the transfer schemes, references to “theOffice” (i.e. Ofsted) include, so far as relevant, the Chief Inspector.

Part 7 - Statutory Rights to Leave and Pay

Shared parental leave

Section 117: Shared parental leave

476. This section inserts a new Chapter 1B into Part 8 of the Employment Rights Act 1996(ERA). This creates a new entitlement for employees to be absent from work on sharedparental leave for the purposes of caring for a child.

Section 75E: Entitlement to shared parental leave: birth

477. Section 75E deals with entitlement to shared parental leave in relation to birth.

478. Subsections (1) and (4) confer powers on the Secretary of State to make regulationsentitling employees to be absent from work for the purpose of caring for a child if theysatisfy certain specified conditions.

479. Subsections (1) to (3) are about the conditions for eligibility of the mother of the child.The conditions that may be specified include conditions as to duration of employment,her relationship with the child and as to caring with another person (“P”) for the child.

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Subsection (1)(f) includes a condition relating to the giving of a notice of intention totake shared parental leave; and subsection (3) specifies what this notice may be about:it may be about the amount of leave available to the mother; the amount of leave themother intends to take; and whether and to what extent P will take leave or statutoryshared parental pay. Subsection (1)(g) specifies a condition relating to the consent of Pto the amount of leave that the mother intends to take.

480. Subsection (2) provides that the conditions of entitlement of the mother can includeP meeting conditions in respect of P’s employment or self-employment, P’s earnings,P’s relationship to the mother or the child and P’s intention to care, with the mother,for the child. The effect of this provision is that one of the conditions of entitlement toshared parental leave for the mother can relate to the mother’s sharing the care of thechild with P and P satisfying conditions as to economic activity and relationship withthe child or the mother.

481. Subsection (4) specifies conditions that may be included in regulations to giveentitlement to shared parental leave for another employee (the father or the mother’spartner). These include certain conditions as to duration of employment, the employee’srelationship with the child or with the child’s mother and as to the employee caring,with the child’s mother, for the child. Subsection (4)(d) includes a condition relatingto the giving of a notice of intention to take shared parental leave. Subsection (4)(e)specifies a condition relating to the child’s mother’s consent to the amount of sharedparental leave the employee intends to take.

482. Subsection (5) provides that the conditions of entitlement for the employee can includethe mother meeting conditions as to her employment or self-employment, her earnings,her caring with the employee for the child and her entitlement (or otherwise) to statutorymaternity pay or maternity allowance and the exercise of these entitlements. The effectof this provision is that one of the conditions of entitlement to shared parental leavefor an employee (the father or the mother’s partner) can relate to the employee sharingcare of the child with the mother and to the mother satisfying conditions as to economicactivity.

483. Subsection (6) specifies what the notice the employee is required to give undersubsection (4) is about. It may be about the amount of leave available to the employee,the amount of leave the employee intends to take, and whether and to what extent themother will take leave or shared parental pay.

Section 75F: Entitlement to leave under section 75E: further provision

484. Section 75F is about the making of regulations to calculate the amount of leave availableto the employee, to limit the amount of shared parental leave, to limit when it may betaken, to require the leave to be taken as a single period and to provide for the varying ofthe amount of shared parental leave that an employee may take and the times at whichan employee takes this leave.

485. This section provides that regulations under section 75E will include provisions fordetermining the amount of shared parental leave and when this leave may be taken.Subsection (7) specifies that provision under subsection (1)(b) is to secure that sharedparental leave must be taken before the end of such a period as may be prescribed.Subsection (8) further specifies that provision under subsection (1)(b) is to provide forthe taking of shared parental leave in a single period or in non-consecutive periods.

486. This section specifies the maximum amount of leave to which an employee is entitled.The maximum amount in the case of a mother who is entitled to maternity leave is anamount of time specified by regulations (expected to be the total length of maternityleave (52 weeks)) less the amount of maternity leave taken by the mother (where shereturns to work without taking specified action to reduce her maternity leave period)or the amount by which the maternity leave period has been reduced. The maximumamount of time in the case of a mother who is entitled to statutory maternity pay or

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maternity allowance only is an amount of time specified by regulations (expected to be52 weeks) less the number of weeks of statutory maternity pay or maternity allowancepayable to the child’s mother, or the number of weeks by which the maternity allowanceperiod or maternity pay period has been reduced.

487. This section specifies that the amount of shared parental leave to which the employee isentitled in respect of a child takes into account the amount of such leave taken by anotherperson in respect of that child or the number of weeks of statutory shared parental payreceived by another person in respect of that child (in the case where the other person isentitled to statutory shared parental pay in respect of the child but not to shared parentalleave).

488. This section specifies that for the purposes of calculation of the amount of sharedparental leave under this section, part of a week is to be treated as a full week.

489. This section provides that the regulations under section 75E may enable an employer,in a case where an employee has proposed to take non-consecutive periods of sharedparental leave, to require the employee to take that amount of leave as a single periodof leave. This single period of leave may start with a day proposed by the employeeor, if no day is proposed, with the first day of the first period of leave proposed by theemployee. This provision is to provide a default position for when the shared parentalleave can be taken if agreement cannot be reached between employer and employee.

490. This section provides that regulations made under section 75E may enable an employee,subject to prescribed restrictions, to vary the period or periods of shared parental leaveto be taken without varying the amount of leave, and to vary the amount of leavewhich the employee has notified an intention to exercise. This section provides thatvariations to the period or periods during which the leave is taken may require thisvariation to be subject to obtaining the employer’s consent in circumstances specifiedby regulations. This section specifies that in relation to variations to the amount ofleave which the employee has notified an intention to exercise, the employee may berequired to do this by notice and the consent of the child’s mother or P may be required.This section specifies that notifications of variation of the amount of leave which anemployee intends to exercise may be required to include notice about the amount ofshared parental leave the employee has taken in respect of the child, how much leavethe employee intends to take and the amount of shared parental leave or statutory sharedparental pay that the other person who may be entitled to such leave or pay in respectof the child, has taken or intends to take.

491. This section provides that regulations made under section 75E may specify: the thingswhich are and are not to be taken as done for the purpose of caring for the child;the minimum amount of shared parental leave that may be taken and provision abouthow this leave may be taken; the circumstances in which an employee may work foran employer during a period of shared parental leave without bringing the period ofleave, or the employee’s entitlement to it, to an end; and the circumstances in whichthe employee may be absent on shared parental leave otherwise than for the purposeof caring for a child without bringing their entitlement to an end. The latter provisionmight be relevant to situations where an employee has an entitlement to shared parentalleave but whose child subsequently dies. They may also make provision to exclude theright to be absent on shared parental leave in respect of a child where more than onechild is born as a result of the same pregnancy.

492. This section enables the Secretary of State to provide by regulations that certainsubsections do not have effect, or have effect with prescribed modifications, in a casewhere the mother of a child dies before another person has become entitled to sharedparental leave in respect of that child. This might be relevant to situations where amother dies before entitlement to shared parental leave has arisen for herself or herpartner.

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Section 75G: Entitlement to shared parental leave: adoption

493. Section 75G deals with entitlement to shared parental leave in relation to adoption.

494. Subsections (1) and (4) confer powers on the Secretary of State to make regulationsentitling employees who are adopters or prospective adopters to be absent from workfor the purpose of caring for a child if they satisfy certain conditions.

495. Subsections (1) to (3) are about the conditions of eligibility of the person with whoma child is to be, or is expected to be, placed for adoption (the “primary adopter”).These include certain conditions as to the primary adopter’s duration of employment,relationship with the child and as to caring with another person (“P”) for the child.Subsection (1)(g) specifies a condition relating to the consent of P to the amount of leavethe primary adopter intends to take. Subsection (1)(f) includes a condition relating to thegiving of a notice of intention to take shared parental leave under this subsection; andsubsection (3) specifies what this notice may be about, such as the maximum amount ofleave available to the primary adopter, the amount of leave the primary adopter intendsto take and the extent to which P intends to exercise entitlement to the leave or tostatutory shared parental pay.

496. Subsection (2) provides that the conditions of entitlement of the primary adopter caninclude P meeting certain conditions in respect of employment or self-employment,earnings, relationship to the primary adopter or the child and having caringresponsibility for the child. The effect of this provision is that one of the conditions ofentitlement to shared parental leave for the primary adopter can relate to the primaryadopter sharing the care of the child with P and P satisfying conditions as to economicactivity and relation with the child or the primary adopter.

497. Subsections (4) to (6) specify conditions that may be included in regulations togive entitlement to shared parental leave to another employee (other than theprimary adopter). These include certain conditions as to duration of employment, theemployee’s relationship with the child and with the primary adopter and as to theemployee caring with the primary adopter for the child. Subsection (4)(d) includes acondition relating to giving notice of intention to take shared parental leave. Subsection(4)(e) specifies a condition relating to the consent of the primary adopter to the amountof leave that the other employee intends to take.

498. Subsection (5) provides that the conditions for entitlement for the employee can includethe primary adopter meeting conditions as to employment or self-employment andearnings; the primary adopter caring with the employee for the child; the primaryadopter’s entitlement (or otherwise) to adoption leave or statutory adoption pay, andthe extent of the primary adopter’s exercise of such entitlement.

499. Subsection (6) specifies what the notice the employee is required to give undersubsection (4) is about. It may be about the maximum possible extent of theirentitlement to leave, the amount of leave the employee intends to take, and whether andto what extent the primary adopter will exercise an entitlement to shared parental leaveor statutory shared parental pay.

Section 75H: Entitlement to leave under section 75G: further provision

500. Section 75H is about the making of regulations to calculate the amount of sharedparental leave available to the employee, to limit the amount of shared parental leave,to limit when it may be taken, to require the leave to be taken as a single period and toprovide for the varying of the amount of shared parental leave that an employee maytake and the times at which an employee takes this leave.

501. This section provides that regulations under section 75G will include provisions fordetermining the amount of shared parental leave to which an employee is entitledin respect of a child, and when this leave may be taken. This section specifies thatprovision under subsection (1)(b) is to allow shared parental leave to be taken in non-

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consecutive periods. The effect of this is to allow the leave to be taken more flexiblythan in a single consecutive block.

502. This section specifies the maximum amount of leave to which an employee is entitled.The maximum amount in the case of a primary adopter who is entitled to adoptionleave is an amount of time specified in regulations (expected to be the total length ofadoption leave (52 weeks)) less the amount of adoption leave taken by the primaryadopter (where the primary adopter returns to work without taking specified action toreduce the adoption leave period) or the amount by which the adoption leave periodhas been reduced. The maximum amount of time in the case of a primary adopter whois entitled to statutory adoption pay only is an amount of time specified by regulations(expected to be 52 weeks) less the number of weeks of statutory adoption pay payable tothe primary adopter, or the number of weeks by which the adoption pay period has beenreduced. Subsection (3) specifies that the amount of shared parental leave to which theemployee is entitled in respect of a child takes into account the amount of such leavetaken by another person in respect of that child, or the number of weeks of statutoryshared parental pay received by the other person in respect of the child (in a case wherethe other person is entitled to statutory shared parental pay in respect of the child butnot shared parental leave.)

503. This section specifies that provision under subsection (1)(b) is to secure that sharedparental leave must be taken before the end of a prescribed period.

504. This section specifies that for the purposes of calculating the amount of adoption leaveor shared parental leave taken, part of a week is to be treated as a full week.

505. This section provides that the regulations under section 75G may enable an employer,in a case where an employee has proposed to take non-consecutive periods of sharedparental leave, to require the employee to take that amount of leave as a single period ofleave. This single period of leave will start with a day proposed by the employee or, if noday is proposed, with the first day of the first period of leave proposed by the employee.The effect of this provision is to provide a default position for when shared parentalleave can be taken if agreement cannot be reached between employer and employee.

506. This section provides that regulations made under section 75G may enable an employee,subject to prescribed restrictions, to vary the period(s) of shared parental leave to betaken without varying the amount of leave and to vary the amount of leave which theemployee has notified an intention to exercise. This section provides that variations tothe period or periods during which the leave is taken may require this variation to besubject to obtaining the employer’s consent in circumstances specified by regulations.This section specifies that in relation to variations to the amount of leave which theemployee has notified an intention to exercise, the employee may be required to includecertain information in the notice to their employer and the consent of the primaryadopter or P (as appropriate) may be required. This section specifies that notifications ofvariation of the amount of leave which an employee intends to exercise may be requiredto include notice about the amount of shared parental leave the employee has taken inrespect of the child, how much leave the employee intends to take and the amount ofshared parental leave or statutory shared parental pay that the other person who may beentitled to such leave or pay in respect of the child, has taken or intends to take.

507. This section provides that regulations made under section 75G may specify the thingswhich are and are not to be taken as done for the purpose of caring for the child;the minimum amount of shared parental leave that may be taken and provision abouthow this leave may be taken; the circumstances in which an employee may work foran employer during a period of shared parental leave without bringing the period ofleave, or the employee’s entitlement to it, to an end and the circumstances in whichthe employee may be absent on shared parental leave otherwise than for the purposeof caring for a child without bringing their entitlement to an end. The latter may berelevant to situations where an employee has an entitlement to shared parental leavebut whose child subsequently dies. They may also make provision to ensure that an

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employee cannot take more than one period of shared parental leave in circumstanceswhere more than one child is placed for adoption as part of the same arrangement.

508. This section specifies that in this section “week” means any period of seven days.

509. This section enables regulations to stipulate that certain subsections do not have effect,or have effect with prescribed modifications, in a case where the person who is takingadoption leave or is entitled to be paid statutory adoption pay dies before another personhas become entitled to shared parental leave in respect of the relevant child. This is toenable the other person to be able to become entitled to shared parental leave after thedeath of the primary adopter.

510. This section allows the Secretary of State to provide for sections 75G and 75H tohave effect, with appropriate modifications, in relation to cases where a child has beenadopted under the laws of a jurisdiction outside the United Kingdom.

511. This section enables the Secretary of State to provide by means of regulations forsections 75G and 75H to have effect (with modifications) in relation to cases involvingan employee who has applied, or intends to apply, with another person, under section 54of the Human Fertilisation and Embryology Act 2008 for a parental order in respect ofa child (“intended parent”). This will allow some parents in surrogacy arrangements tobe entitled to shared parental leave in the same way as certain adoptive parents.

Section 75I: Rights during and after shared parental leave

512. Section 75I deals with the rights of employees during and after shared parental leave.

513. Subsection (1) provides for regulations under section 75E or 75G to specify the rightsand responsibilities of employees whilst on, and after shared parental leave. Subsection(1)(a) states that employees who are absent on shared parental leave will be entitled asfar as prescribed, to the benefit of the same terms and conditions of employment whichwould have applied if the employee had not been absent.

514. Subsection (1)(b) further stipulates that whilst on shared parental leave the employeewill continue to be bound, as far as prescribed, by the obligations that would arise fromthose terms and conditions, to the extent they are compatible with the taking of sharedparental leave.

515. Subsection (1)(c) provides for an employee who has been absent on shared parentalleave to have the right to return to a kind of job as specified in regulations. Subsection(5) provides for regulations to make provision about seniority, pension and other similarrights, and terms and conditions of employment on return.

516. Subsection (3) stipulates that, where appropriate, the type of absence that gives rise tothe right to return referenced in subsection (1)(c) may be a continuous period of absenceattributable to a combination of shared parental leave, maternity leave, paternity leave,adoption leave and parental leave.

517. Subsection (2)(b) specifies that “terms and conditions of employment” as referencedin subsection (1)(a) does not include remuneration. Subsection (4) provides thatregulations may specify matters which are or are not to be treated as remuneration forthe purpose of entitlement to shared parental leave (for birth and adoption).

Section 75J: Redundancy and dismissal

518. Section 75J provides that regulations under section 75E or 75G may make provisionsabout redundancy or dismissal during a period of shared parental leave.

519. Subsection (2) states that such provisions may include a requirement for an employer tooffer alternative employment, and provision for the consequences of failure to complywith the regulations.

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Section 75K: Chapter 1B: supplemental

520. Section 75K allows regulations to be made about notices, evidence, procedures to befollowed and other supplementary matters.

521. Subsection (1)(a) enables regulations to provide for notices to be given, evidence to beproduced and other procedures to be followed by employers, employees and relevantpersons. Subsection (2) defines “relevant person”. Subsection (1)(b) enables regulationsto require such persons to keep records. Subsection (1)(c) enables regulations to providefor the consequences of failure to give notices, produce evidence, keep records orcomply with other procedural requirements. Subsection (1)(d) enables regulations tomake provision for the consequences of failure to act in accordance with such a notice.Subsection (1)(e) enables special provision for cases to be made where an employee hasa right which corresponds to a right to shared parental leave and which arises under theemployee’s contract of employment or otherwise. Subsection (1)(f) and (g) allows forregulations to make provision to modify provision in the ERA relating to the calculationof a week’s pay and to modify, apply or exclude enactments in relation to a personentitled to shared parental leave.

522. Subsections (3) to (5) ensure that the conditions of economic activity which may bespecified under sections 75E(2) or (5) and 75G(2) or (5) in relation to the person withwhom care of the child is shared can include conditions relating to that person being anemployed earner or a self-employed earner. They also ensure that the power to makeprovision about procedures to be followed by an employer of that other person undersection 75K includes, as far as concerns an employed earner, the secondary contributor(in relation to secondary Class I National Insurance contributions).

523. Subsection (6) allows for regulations under any of sections 75E to 75H to make differentprovision for different cases or circumstances.

524. Subsection (7) provides that the Secretary of State can prescribe that eligible intendedparents in surrogacy arrangements who wish to take shared parental leave must makea statutory declaration as to their eligibility and intention to apply for a parental order.

Section 118: Exclusion or curtailment of other statutory rights to leave

525. This section amends the ERA to allow regulations to be made which will enable a birthmother or primary adopter to bring their ordinary maternity or adoption leave to an endearly. This will allow the person and/or their partner to access the new system of sharedparental leave and pay.

526. This section allows regulations to be made which will set out the circumstances in whichthe birth mother or adoptive parent can change their mind about a decision to end theirordinary maternity or adoption leave early. It is intended that the birth mother will beable to revoke a decision made before the birth until a certain point (which will be setout in the regulations) after the birth.

527. This section provides that these regulations may only allow a birth mother or adoptiveparent to bring their ordinary maternity or adoption leave to an end if they and the personwith whom they share care of the child take certain steps in relation to the taking ofshared parental leave or pay which will include giving notice to their employers whererelevant.

528. This section also allows regulations to be made which will enable a birth mother orprimary adopter to bring their additional maternity or adoption leave to an end early. Itmirrors the provisions for ordinary maternity leave which are described above.

529. Finally, this section requires regulations to be made which will provide that the takingof shared parental leave prevents an employee from exercising the right to take anyremaining paternity leave. This applies in both birth and adoption cases.

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Statutory shared parental pay

Section 119: Statutory shared parental pay

530. This section inserts a new Part 12ZC into the Social Security Contributions and BenefitsAct 1992 (SSCBA), enabling regulations to be made to create new entitlements toshared parental pay for qualifying birth parents, adopters and intended parents insurrogacy arrangements.

Section 171ZU: Entitlement: birth

531. This section deals with entitlement to statutory shared parental pay in relation to birth.

532. Subsection (1) confers power on the Secretary of State to make regulations to providethat where the conditions in subsection (2) are satisfied, the mother of a child (the“claimant mother”) is entitled to payments to be known as “statutory shared parentalpay”.

533. The condition in subsection (2)(a) is that the claimant mother and another person (“P”)satisfy certain prescribed conditions as to caring or intending to care for the child.

534. The condition in subsection (2)(b) is that P must meet certain prescribed conditionsas to employment or self-employment, earnings and relationship with the claimantmother or child. The conditions in subsection (2)(c), (d) and (e) require the claimantmother to have met prescribed conditions regarding a continuous length of employment,earnings and entitlement to be in employment. The condition in subsection (2)(f) isthat, if regulations so provide, the claimant mother continues in employed earner’semployment until such a time as specified.

535. The condition in subsection (2)(g) is that the claimant mother became entitled to receivestatutory maternity pay in respect of the child. The condition in subsection (2)(h) relatesto the reduction of the maternity pay period applying to the claimant mother.

536. The condition in subsection (2)(i) and (j) is that the claimant mother has given noticeof the total number of weeks which she would be entitled to claim statutory sharedparental pay, the number of weeks she intends to claim the pay and the number of weeksP intends to claim the pay and the periods during which the claimant mother intendsto claim the pay.

537. The condition in subsection (2)(k) is that the notices under subsection (2)(i) and (j) aregiven by such a time as may be prescribed and satisfy certain prescribed conditions asto form and content

538. The condition in subsection (2)(l) is that P consents to the amount of statutory sharedparental pay the claimant mother intends to claim.

539. The condition in subsection (2)(m) is that it must be the claimant mother’s intention tocare for the child during each week in which statutory shared parental pay is paid to her.

540. The conditions in subsection (2)(n) and (o) state the claimant mother must be absentfrom work for each week that statutory shared parental pay is paid to her. Where she isan employee, she must be absent from work on shared parental leave.

541. Subsection (3) confers power on the Secretary of State to make regulations to providethat where the conditions in subsection (4) are satisfied, a person (“the claimant”) isentitled to payments to be known as “statutory shared parental pay”.

542. The condition in subsection (4)(a) is that the claimant and another person who is themother of a child satisfy certain prescribed conditions as to caring or intending to carefor the child. The condition in subsection (4)(b) is that the claimant must satisfy certainprescribed conditions as to the relationship with the child or the child’s mother.

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543. The condition in subsection (4)(c) is that the child’s mother meets prescribed conditionsas to employment or self-employment and earnings. The conditions in subsection (4)(d), (e) and (f) are that the claimant has met prescribed conditions relating to acontinuous length of employment, earnings and entitlement to be in that employment.The condition in subsection (4)(g) is that the claimant, if so prescribed, must continuein employed earner’s employment until such a time as specified in regulations.

544. The condition in subsection (4)(h) is that the mother of the child must have been entitledas a result of the birth of the child to receive either maternity allowance or statutorymaternity pay. The condition in subsection (4)(i) relates to the reduction of the maternitypay period or the maternity allowance period applying to the mother.

545. The condition in subsection (4)(j) and (k) is that the claimant has given notice of thetotal number of weeks which the claimant would be entitled to claim statutory sharedparental pay, the number of weeks the claimant intends to claim the pay and the numberof weeks the child’s mother intends to claim the pay and the periods during which theclaimant intends to claim the pay.

546. The condition in subsection (4)(l) is that the notices are submitted by such a time as maybe prescribed and satisfy prescribed conditions as to form and content. The condition insubsection (4)(m) is that the mother of the child must consent to the amount of statutoryshared parental pay that the claimant intends to claim.

547. The condition in subsection (4)(n) is that it is the claimant’s intention to care for thechild during each week in which statutory shared parental pay is paid to the claimant.

548. The condition in subsection (4)(o) and (p) is that the claimant must be absent from workfor each week that statutory shared parental pay is paid to the claimant. If the claimantis an employee, the claimant must be absent from work on shared parental leave.

549. Subsection (5) provides for the Secretary of State to make regulations to determine theextent of a person’s entitlement to statutory shared parental pay in respect of a child,and the times at which this is to be paid.

550. Subsections (6) and (7) provide the extent of a person’s entitlement to statutory sharedparental pay cannot exceed the length of the maternity pay period (currently 39 weeks)less the number of weeks that maternity allowance or maternity pay is payable to themother up to her return to work or the number of weeks by which the maternity payperiod or maternity allowance period has been reduced (where the mother reduces theseperiods before returning to work). Subsection (7) defines the meaning of “relevantweek”.

551. Subsection (8) specifies that for the purposes of the calculation under subsection (6)(b),part of a week is to be treated as a full week.

552. Subsection (9) specifies that provision under subsection (5)(a) is to ensure that wheretwo people are both entitled to statutory shared parental pay in respect of the samechild, the total number of weeks taken by both does not exceed the number of weeksas specified in the calculation described under subsection (6). Subsection (10) specifiesthat provision under subsection (5)(b) as to when statutory shared parental pay ispayable is to ensure that payments of statutory shared parental pay cannot be made toa person after such period as may be prescribed. Subsection (11) further specifies thatthe provision as to when statutory shared parental pay is payable is to ensure that nopayment of statutory shared parental pay may be made to the mother of the child beforethe end of the mother’s maternity pay period.

553. Subsection (12) provides for regulations to enable a person who is entitled to statutoryshared parental pay to vary the period or periods during which the person intends toclaim such pay without varying the overall amount of statutory shared parental pay theperson intends to take, provided certain conditions are satisfied. These conditions arespecified in subsection (13). They require the person who intends to claim statutory

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shared parental pay to give notice of their intention to vary the period or periods duringwhich they intend to claim the pay to the person who will be liable to pay it. This noticemust be given by such time and satisfying certain conditions as to form and content asmay be prescribed.

554. Subsection (14) provides for regulations to enable a person who is entitled tostatutory shared parental pay to vary the number of weeks that the person intendsto claim, providing certain conditions are satisfied. These conditions are specified insubsection (15). They require that the person must give notice of certain specifiedinformation to the person who will be liable to pay the statutory shared parental pay.The consent of the other person eligible for statutory shared parental pay in respect ofthe same child must also be obtained. This notice must be given by such time as maybe prescribed and satisfying certain conditions as to form and content.

555. Subsection (16) specifies that a person’s entitlement to statutory shared parental payunder this section is not affected by the birth of more than one child as a result of thesame pregnancy.

Section 171ZV: Entitlement: adoption

556. This section deals with entitlement to statutory shared parental pay in relation toadoption.

557. Subsections (1) and (3) confer power to make regulations to provide that where therespective conditions in subsections (2) and (4) are satisfied, a person with whom achild is, or is expected to be, placed for adoption (“claimant A”) and another person(“claimant B”) are to be entitled to payments to be known as “statutory shared parentalpay”.

558. Subsection (2) of the new section states the conditions claimant A must meet in orderto be entitled to statutory shared parental pay. In some cases, the conditions provide forfurther matters to be dealt with in regulations.

559. The condition in subsection (2)(a) is that claimant A and another person (“X”) mustsatisfy certain prescribed conditions as to caring or intending to care for the child.

560. The condition in subsection (2)(b) specifies that the other person must have met certainprescribed conditions as to employment status, earnings and relationship with claimantA or the child. In practice, X may also be the person who is claimant B for the purposesof subsection (3).

561. The conditions in subsection (2)(c), (d) and (e) require claimant A to have met certainprescribed conditions regarding length of service, earnings and entitlement to be inemployment. The condition in subsection (2)(f) is that, if regulations so provide,claimant A must continue in employed earner’s employment until such a time asspecified in regulations.

562. The condition in subsection (2)(g) is that claimant A became entitled to receive statutoryadoption pay in respect of the child. The condition in subsection (2)(h) relates to thereduction of the adoption pay period.

563. The condition in subsection (2)(i) and (j) is that claimant A has given notice of thetotal number of weeks claimant A would be entitled to claim statutory shared parentalpay, the number of weeks claimant A intends to claim the pay, the number of weeksX intends to claim the pay and the periods during which claimant A intends to claimthe pay.

564. The condition in subsection (2)(k) is that the notices under subsection (2)(i) or (j) aregiven by such a time as may be prescribed and satisfy certain prescribed conditions asto form and content.

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565. The condition in subsection (2)(l) is that X must consent to the amount of statutoryshared parental pay claimant A intends to claim.

566. The condition in subsection (2)(m) specifies that it must be claimant A’s intention tocare for the child during each week in which statutory shared parental pay is paid toclaimant A.

567. The conditions in subsection (2)(n) and (o) are that claimant A must be absent fromwork for each week that statutory shared parental pay is paid to claimant A. Whereclaimant A is an employee, that person must be absent from work on shared parentalleave.

568. Subsection (4) deals with the conditions that claimant B must meet in order to be entitledto statutory shared parental pay. As with the entitlement criteria for claimant A, in somecases the conditions provide for further matters to be dealt with in regulations.

569. The condition in subsection (4)(a) is that claimant B and another person (“Y”) who isa person with whom a child is, or is expecting to be, placed for adoption satisfy certainprescribed conditions as to caring or intending to care for the child. Subsection (4)(b)requires that claimant B satisfy certain conditions as regards relationship with the childor Y. In practice, Y may also be the same person who is claimant A for the purposesof subsection (1).

570. The condition in subsection (4)(c) is that Y must meet certain employment status andearnings criteria, the details of which will be prescribed in regulations. The conditionsin subsection (4)(d), (e) and (f) require that claimant B has met certain prescribedconditions relating to a continuous length of employment, earnings and entitlementto be in that employment. The condition in subsection (4)(g) is that claimant B, ifso prescribed, must continue in employed earner’s employment until such a time asspecified in regulations.

571. The condition in subsection (4)(h) is that Y became entitled to receive statutory adoptionpay by reference to the child. The condition in subsection (4)(i) relates to the reductionof the adoption pay period applying to Y.

572. The condition in subsection (4)(j) and (k) is that claimant B has given notice of the totalnumber of weeks which claimant B would be entitled to claim statutory shared parentalpay, the number of weeks claimant B intends to claim pay and the number of weeksY intends to claim the pay and the periods during which claimant B intends to claimthe pay. The condition in subsection (4)(l) is that these notices be submitted by sucha time as may be prescribed and satisfy prescribed conditions as to form and content.The condition in subsection (4)(m) is that Y consent to the amount of statutory sharedparental pay that claimant B intends to claim.

573. The condition in subsection (4)(n) is that it must be claimant B’s intention to care for thechild during each week in which statutory shared parental pay is paid to the claimant.

574. The condition in subsection (4)(o) and (p) is that claimant B must be absent from workfor each week that statutory shared parental pay is paid to the claimant. If claimant Bis an employee, the claimant must be absent from work on shared parental leave.

575. Subsection (5) provides for the Secretary of State to make regulations to determine theextent of a person’s entitlement to statutory shared parental pay in respect of a child,and the times at which this may be paid.

576. Subsections (6) and (7) provide the extent of a person’s entitlement to statutory sharedparental pay cannot exceed the length of the adoption pay period (currently 39 weeks)less the number of weeks that adoption pay is payable to the claimant’s return to workor the number of weeks by which the adoption pay period has been reduced (wherethe claimant reduces this period before returning to work). Subsection (7) defines themeaning of “relevant week”.

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577. Subsection (8) further specifies that for the purposes of calculations undersubsection (6)(b), part of a week is to be treated as a full week.

578. Subsection (9) specifies that provision under subsection (5)(a) is to ensure that whentwo people are entitled to statutory shared parental pay in respect of the same child,the total number of weeks taken cannot exceed the number of weeks calculated undersubsection (6).

579. Subsection (10) specifies that provision under subsection (5)(b) as to when statutoryshared parental pay is payable is to secure that payments of statutory shared parental paycannot be made to a person after a prescribed period. Subsection (11) further specifiesthat the provision as to when statutory shared parental pay is payable is to secure thatwhere a person is entitled to receive statutory adoption pay, no payment of statutoryshared parental pay may be made to them before the end of their adoption pay period.

580. Subsection (12) provides for regulations to enable a person who is entitled to statutoryshared parental pay to vary the period(s) during which the person intends to claim suchpay without varying the overall amount of statutory shared parental pay the personintends to take, provided certain conditions are satisfied. These conditions are specifiedin subsection (13). They require the person who intends to claim statutory sharedparental pay to give notice of their intention to vary the period(s) during which theyintend to claim the pay to the person who will be liable to pay it. This notice must satisfycertain prescribed conditions as to time, form and content.

581. Subsection (14) provides power to make regulations to enable a person who is entitledto statutory shared parental pay to vary the number of weeks of shared parental paythat he or she intends to claim, providing certain conditions in subsection (15) aresatisfied. They require that the person must give notice in prescribed form and by aprescribed time, containing specified information to the person who will be liable to paythe statutory shared parental pay. The consent of the other person eligible for statutoryshared parental pay in respect of the same child must also be obtained.

582. Subsection (16) has the effect that if a person adopts more than one child as part of thesame arrangement, he or she will not be entitled to take any more shared parental paythan that to which he or she would have been entitled if only one child was adopted.

Section 171ZW: Entitlement: general

583. This section makes further provision about a person’s entitlement to statutory sharedparental pay (whether in relation to birth or adoption).

584. Subsection (1)(a) provides power for the Secretary of State to provide that theentitlement conditions for statutory shared parental pay do not have effect, or haveeffect subject to prescribed modifications in such cases as may be prescribed.

585. Subsection (1)(b) provides power for the Secretary of State to impose requirementsabout evidence of entitlement by way of regulations.

586. Subsection (1)(c) to (f) provides power for the Secretary of State to make provisionrelating to continuous employment and the calculation of earnings.

587. Subsection (2) defines the person or persons on whom requirements may be imposedby virtue of subsection (1)(b).

Section 171ZX: Liability to make payments

588. This section makes provision about liability to pay statutory shared parental pay(whether in relation to birth or adoption).

589. Subsection (1) of the inserted section provides for employers to be liable for thepayment of statutory shared parental pay. (Although under section 7 of the Employment

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Act 2002, as amended by Schedule 7, provision is made for the funding of employers’liabilities to pay statutory shared parental pay.)

590. Subsection (2) requires the Secretary of State to make regulations about the liability ofa former employer to pay statutory shared parental pay where the employee has beendismissed by the employer to avoid liability to pay statutory shared parental pay.

591. Subsection (3) of the inserted section provides power for the Secretary of State,with the concurrence of the Commissioners for HMRC, to specify in regulationscircumstances in which liability for paying statutory shared parental pay is to fall onthe Commissioners.

Section 171ZY: Rate and period of pay

592. This section deals with the rate at which statutory shared parental pay is payable andthe period for which it is payable (whether in relation to birth or adoption).

Section 171ZZ: Restrictions on contracting out

593. This section deals with restrictions on contracting out.

594. Subsection (1) provides that an agreement is void to the extent that it purports toexclude, limit or otherwise modify any provision of the new Part 12ZC of the SSCBA,or to require a person to contribute (whether directly or indirectly) towards any costsincurred by that person’s employer or former employer under that Part.

595. Subsection (2) contains a provision which ensures that certain agreements with anemployee authorising deductions from shared parental pay are not void.

Section 171ZZ1: Relationship with contractual remuneration

596. This section deals with the way in which statutory shared parental pay interacts withcontractual remuneration.

597. Subsection (1) provides that, subject to subsections (2) and (3), any entitlement tostatutory shared parental pay is not to affect any right of any person in relationto contractual remuneration. Subsection (2) specifies that payment of contractualremuneration can be counted as discharging a liability of the employer to pay statutoryshared parental pay. Also payment of statutory shared parental pay can be counted asdischarging an obligation of the employer to pay contractual remuneration.

598. Subsection (3) makes provision for regulations to provide which payments are to betreated as contractual remuneration for the purposes of subsections (1) and (2).

Section 171ZZ2: Crown employment

599. This section provides that the provisions of the new Part 12ZC of the SSCBA applyin relation to persons employed by or under the Crown in the same way as personsotherwise employed.

Section 171ZZ3: Special classes of person

600. This section gives power to the Secretary of State to make regulations modifying anyprovision of the Part of the Act dealing with statutory shared parental pay in applicationto special classes of person. The special classes are those employed on board anyship, vessel, hovercraft or aircraft; outside Great Britain at a prescribed time or inprescribed circumstances; and in prescribed employment in connection with continentalshelf operations.

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Section 171ZZ4: Part 12ZC: supplementary

601. Subsections (1), (2) and (5) define the meaning of “employer”, “modifications”,“prescribed”, “employee” and “week” in the Part of the Act dealing with statutoryshared parental pay.

602. Subsection (3) provides that persons who do not meet the definition of “employee” asstated in subsection (2) may be treated as such for the purposes of the Part of the Actdealing with statutory shared parental pay, and that some who do meet the definitionmay be treated as if they do not.

603. Subsection (4) provides that two or more employers and that two or more contracts ofservice in respect of the same employee may be treated as one for the purposes of thisPart by way of regulations.

604. Subsection (6) sets out how to calculate a person’s normal weekly earnings for thepurposes of this new Part 12ZC of the SSCBA. Subsection (7) provides for the meaningof “earnings” and “relevant period” as mentioned in subsection (6) to be defined inregulations. Subsection (8) provides that a person’s normal weekly earnings will becalculated in accordance with regulations in such cases as may be prescribed.

605. Subsections (9) to (11) make special provision as to the treatment of contracts ofemployment within the NHS.

Section 171ZZ5: Power to apply Part 12ZC

606. Subsection (1) enables provision to be made so that the shared parental pay regulationsmade under the new Part 12ZC of the SSCBA may have effect in relation to casesinvolving the adoption of a child from outside the jurisdiction of the United Kingdom.

607. Subsection (2) enables provision to be made so that the shared parental pay regulationsmade under the new Part 12ZC of the SSCBA may have effect in relation to intendedparents in surrogacy arrangements who meet certain conditions.

608. Subsection (3) enables regulations made under section 171ZW(1)(b) (about evidence ofentitlement and procedures to be followed) to require that intended parents in surrogacyarrangements who wish to take shared parental pay must make statutory declarationsas to their eligibility and intention to apply for a parental order.

Section 120: Curtailment of statutory pay periods and exclusion of statutory pay

609. This section amends the SSCBA. It inserts provisions into sections 35, 165 171ZE and171ZN that allow regulations to be made that will enable the duration of the maternityallowance period, the maternity pay period or the adoption pay period as it appliesto a person to be reduced subject to prescribed conditions and restrictions. This willallow access to the new system of shared parental leave and pay. The section alsoallows regulations to be made that will enable a reduction in maternity allowance,maternity pay or adoption pay periods to be revoked or to be treated as revoked subjectto prescribed conditions and restrictions (for example, the regulation making powermight be used in some circumstances where a woman’s partner has died).

610. Subsection (3) inserts a provision into section 35 to ensure that a woman is not entitledto maternity allowance for any week that she would have been entitled to statutorymaternity pay, had she not reduced the duration of the statutory maternity pay period.

611. Subsection (5) inserts provisions into section 171ZE to specify that statutory paternitypay will not be payable in respect of a child for a week where the person has alreadybeen paid statutory shared parental pay, or taken shared parental leave, in respect of thechild or is due to be paid statutory shared parental pay, or take shared parental leave,in respect of the child for any part of that week.

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Other statutory rights

Section 121: Statutory rights to leave and pay of prospective adopters with whomlooked after children are placed

612. This section supports the changes being made by Part 1, which will provide swifterplacement of looked after children in ‘Fostering for Adoption’ and ‘concurrentplanning’ placements. It amends sections 75A and 80B of the ERA and sections 171ZB,171ZE, 171ZJ 171ZL, 171ZN and 171ZS of the SSCBA, so that rights to adoption leaveand pay and paternity leave and pay can apply to approved adopters who have lookedafter children placed with them as part of the ‘Fostering for Adoption’ or ‘concurrentplanning’ processes under section 22C of the Children Act 1989.

613. Subsection (1) inserts a new provision into section 75A of the ERA which sets outconditions that may be prescribed for entitlement to ordinary adoption leave in casesrelating to placement under section 22C of the Children Act 1989. These conditions arethat the person must be a local authority foster parent, must be approved as a prospectiveadopter and must have been notified by a local authority in England that a child is tobe, or is expected to be, placed with the employee under section 22C.

614. Subsection (2) inserts new provisions into section 80B of the ERA relating toentitlement to paternity leave. These new provisions enable regulations that are madeunder section 80(1) of the ERA to be revised so that paternity leave is available for theemployed partners of adopters who have or expect to have a child placed with themunder section 22C of the Children Act 1989. They also enable those regulations to makeprovision ensuring that the employee has no entitlement to take a subsequent period ofpaternity leave in respect of a child if they have already exercised their right to takepaternity leave.

615. Subsection (3) inserts new subsections (8) and (9) into section 171ZB of the SSCBA,relating to entitlement to statutory paternity pay. New subsection (8) provides that thereference in subsection (2) to a child being placed for adoption is to be treated, whererelevant, as including placement under section 22C of the Children Act 1989. Thisallows regulations setting out conditions of entitlement to paternity pay to include caseswhere children are placed with prospective adopters under section 22C of the ChildrenAct 1989. Subsection (3) also makes related necessary changes to other references insubsections (3), (6) and (7) of section 171ZE of the SSCBA. New subsection (9) hasthe effect that a person has no further entitlement to statutory paternity pay in respectof the placement of a child for adoption if he or she has already become entitled tostatutory paternity pay in respect of that child in connection with the placement of thechild under section 22C.

616. Subsection (4) inserts a new subsection (12) into section 171ZE of the SSCBA relatingto the rate and period of statutory paternity pay, so that references in section 171(3)(b) and (10) to being placed for adoption should be read, in relevant cases, as beingreferences to being placed under section 22C of the Children Act 1989.

617. Subsection (5) inserts new subsections (9) and (10) into section 171ZL of the SSCBA(entitlement to statutory adoption pay). These have the effect that various references toplacement for adoption in section 171ZL shall be treated in relevant cases as referringto the placement of a child under section 22C of the Children Act 1989. They also havethe effect that a person who has become entitled to statutory adoption pay in respect ofa child who is (or is expected to be) placed under section 22C will not be entitled to afurther period of statutory adoption pay if he or she is subsequently notified that childwill (or is expected to) be placed with him or her for adoption.

Section 122: Statutory rights to leave and pay of applicants for parental orders

618. This section makes provision for intended parents in surrogacy arrangements, who areor will be entitled and intend to make an application for a parental order under section 54

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of the Human Fertilisation and Embryology Act 2008, to be entitled to paternity leaveand pay and to adoption leave and pay in respect of the child who is or will be thesubject of the order.

619. Subsection (1) amends section 75A of the ERA to enable the Secretary of State byregulation to apply the provisions for ordinary adoption leave to cases involving anemployee who has applied or intends to apply, with another person, for a parental orderunder section 54 of the Human Fertilisation and Embryology Act 2008 in respect of thechild who is, or will be, the subject of the parental order.

620. Subsection (2) amends section 75B of the ERA to enable the Secretary of State byregulation to apply the provisions for additional adoption leave to the employee andchild as described above for ordinary adoption leave.

621. Subsection (3) amends section 75D of the ERA to enable the Secretary of State, whenmaking regulations concerning ordinary or additional adoption leave which concerncases involving an application for a parental order, to require the employee to makea statutory declaration as to his or her eligibility, with another person, to apply for aparental order and to state their intention to make such an application.

622. Subsection (4) amends section 80B of the ERA to enable the Secretary of State tomake regulations to provide that ordinary paternity leave following birth may apply tointended parents in surrogacy cases where an employee, with another person, is eligibleand intends to apply for a parental order in respect of the child who is the subject ofsuch an order.

623. Subsection (5) amends section 171ZK of the SSCBA concerning ordinary paternity payso that regulations may apply ordinary paternity pay to qualifying intended parents insurrogacy arrangements.

624. Subsection (6) amends Part 12ZB of the SSCBA concerning statutory adoption pay bycreating two new subsections. New subsection (2) enables regulations to be made toapply statutory adoption pay to qualifying intended parents in surrogacy arrangements.New subsection (3) enables the regulations in those cases to impose requirements onintended parents in surrogacy arrangements to provide statutory declarations as to theireligibility and intention to apply for a parental order.

Section 123: Statutory paternity pay: notice requirement and period of payment

625. This section amends the existing provisions in the SSCBA on statutory paternity pay.

626. Subsection (2) amends section 171ZC so that the requirement to give notice reflects thechanges to the period of payment of statutory paternity pay made by subsection (3). Theamendments of section 171ZC also provide a power for the Secretary of State to set theamount of notice which the person must give. Subsection (3) amends section 171ZE togive the Secretary of State power to set the number of weeks of statutory paternity payin regulations subject to a minimum of 2 weeks. It also allows regulations to be made toenable paternity pay to be taken in non-consecutive periods of not less than one week.

627. Subsection (4) requires that regulations which set the number of weeks of statutorypaternity pay will be subject to the affirmative parliamentary procedure.

Section 124: Rate of statutory adoption pay

628. Subsection (1) repeals subsection (1) of section 171ZN of the SSCBA, and provides forthe rate of statutory adoption pay to be paid at an earnings related rate for the first 6weeks and the lower of an earnings related rate or a prescribed weekly rate, whicheveris the lower, for the remaining weeks of statutory adoption pay.

629. It also sets the earnings related rate to be the equivalent of 90 per cent of a person’snormal weekly earnings for the 8 weeks ending the week in which the person was

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notified of the adoption match. The prescribed weekly rate must not be lower than thehighest weekly rate that has been set for statutory sick pay.

630. Subsection (2) repeals the entry in section 176(1)(a) of the SSCBA which relates tosection 171ZN(1) of that Act (as section 171ZN(1) is repealed by subsection (1)).

Section 125: Abolition of additional paternity leave and additional statutorypaternity pay

631. This section removes the statutory rights to additional paternity leave and additionalstatutory paternity pay.

632. Subsection (1) repeals the additional paternity leave provisions, for birth parents andadopters, from the ERA.

633. Subsection (2) repeals the additional statutory paternity pay provisions, for both birthparents and adopters, from Part 12ZA of the SSCBA.

Section 126: Further amendments

634. This section gives effect to Schedule 7. It also shows how references to “ordinarystatutory paternity pay” and “statutory paternity pay” in instruments, documents andenactments are to be read once the Act renames “ordinary statutory paternity pay” as“statutory paternity pay” (which is the name this form of statutory pay had before itwas changed by the Work and Families Act 2006).

Schedule 7: Statutory rights to leave and pay: further amendments

635. Schedule 7 makes consequential amendments to a number of Acts in light of theintroduction of shared parental leave and pay.

636. Many of the paragraphs make amendments to other legislation to re-name “ordinarystatutory paternity pay” and “ordinary paternity leave” as “statutory paternity pay” and“paternity leave”. With the abolition of additional statutory paternity pay and leavethere will only be one type of paternity leave and pay and the references to “ordinary”are no longer necessary.

637. Secondly, the amendments remove references to “additional paternity leave” and“additional paternity pay” where appropriate, in line with the abolition of additionalstatutory paternity pay and leave.

638. Thirdly, the amendments insert references to “statutory shared parental pay” and“shared parental leave” where appropriate.

639. Paragraphs 1 to 4 amend Schedule 5 to the Social Security Act 1989. Paragraphs 2and 3 amend the existing paragraphs of Schedule 5 about employment-related schemesthat contain unfair paternity leave provisions and unfair adoption leave provisions sothat they also apply in cases relating to placement of a child under section 22C of theChildren Act 1989 (Fostering for Adoption cases) and in cases involving surrogacyarrangements. Paragraph 4 adds a new paragraph to Schedule 5 about employment-related schemes that contain unfair shared parental leave provisions.

640. Paragraph 5 amends section 182 of the Finance Act 1989 (which concerns offencesrelating to the disclosure of information relating to social security functions). One ofthe ways in which it is amended is so that social security functions include functionsrelating to statutory shared parental pay.

641. Paragraph 34(3) and (5) amend powers in the ERA to allow the Secretary of State toset out in secondary legislation the nature of the right to return to work following aperiod of paternity leave which was combined with a period of shared parental leave.

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http://www.legislation.gov.uk/id/ukpga/2014/6/schedule/7/paragraph/34/3



642. Paragraph 48 provides for provisions in the Finance Act 1999 about electroniccommunication to apply to additional statutory paternity pay.

Part 8 – Time Off Work: Ante-Natal Care Etc

Section 127: Time off work to accompany to ante-natal appointments

643. Subsection (1) inserts new sections 57ZE to 57ZI in the Employment Rights Act 1996(ERA) and subsection (2) amends sections 47C, 99 and 225 of the ERA.

644. New section 57ZE creates a right for an employee to take time off during working hoursto accompany a pregnant woman to an ante-natal appointment made on the advice of adesignated health care professional. The right is available to:

• The husband, civil partner or partner of the pregnant woman;

• The father or parent of the pregnant woman’s expected child; and

• An intended parent in a surrogacy situation who meets specified conditions.

645. The right to take time off under section 57ZE can be exercised on up to two occasionsfor a maximum of six and a half hours on each occasion. An employee is not entitledto take time off unless the employee gives the employer (if the employer so requests)a declaration in the specified form.

646. New section 57ZF provides that an employee who is unreasonably refused time off byan employer may present a complaint to an employment tribunal within the designatedtime limits. If the complaint is substantiated, the tribunal must make an order to thiseffect and must award compensation of twice the hourly salary of the employee for theperiod of absence.

647. New section 57ZG creates a right for certain agency workers to take time off duringworking hours to accompany a pregnant woman to an ante-natal appointment made onthe advice of a designated health care professional. The right is available to:

• The husband, civil partner or partner of the pregnant woman;

• The father or parent of the pregnant woman’s expected child; and

• An intended parent in a surrogacy situation who meets specified conditions.

648. The right to take time off under section 57ZG can be exercised on up to two occasionsfor a maximum of six and a half hours on each occasion. An agency worker is notentitled to take time off unless the agency worker gives the temporary work agency orhirer (if either of them so request) a declaration in the specified form.

649. New section 57ZH provides that an agency worker unreasonably refused time off by thetemporary work agency, the hirer, or both, may present a complaint to an employmenttribunal within the designated time limits. If the complaint is substantiated, the tribunalmust make an order to this effect and must award compensation of twice the hourlysalary of the agency worker for the period of absence. Where both the temporary workagency and hirer have unreasonably refused time off, the tribunal can apportion thecompensation according to each party’s relative fault.

650. New section 57ZI sets out which agency workers have the right to time off undersection 57ZG.

651. Subsection (2)(a) and (b) amend sections 47C and 99 of the ERA to give an employeea right not to be subjected to a detriment and a right not to be unfairly dismissed, asa result of exercising or proposing to exercise a right to time off work to accompanya pregnant woman to an ante-natal appointment. A similar right for an agency workernot to be subjected to a detriment is created in section 129.

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652. Subsection (2)(c) amends section 225 of the ERA to provide that the calculation dateto be used for determining a week’s pay for an employee is the date of the appointmentin question.

Section 128: Time off work to attend adoption appointments

653. This section inserts new sections 57ZJ to 57ZS into Part VI of the ERA, and makesprovision for employed single adopters, or employed adoptive couples, to take timeoff to attend appointments relating to the placement of a child for adoption or for“Fostering for Adoption” (as to which, see the commentary on section 2). The purposeof the appointments is to enable the adopter(s) to bond with the child and to meetwith professionals involved in the care of the child, thus increasing the chances of theadoption being successful.

Section 57ZJ: Right to paid time off to attend adoption appointments

654. Section 57ZJ creates a new right for employees to take paid time off work to attendadoption appointments.

655. Subsection (1) creates a right for an employed single adopter who has been notified byan adoption agency that a child is to be, or is expected to be, placed for adoption withhim or her, to take time off to attend an appointment for the purpose of having contactwith the child or for any other purpose connected with the adoption (an “adoptionappointment”).

656. Subsection (2) creates a right for an employee who has been notified by an adoptionagency that a child is to be, or is expected to be, placed for adoption with the employeeand another person jointly, to take time off to attend an adoption appointment, providedthey have elected to exercise the right to take time off under this subsection.

657. Subsection (3) provides that the employee cannot elect to take time off undersubsection (2) if they have already elected to take time off under section 57ZL(1)(b)(unpaid time off), or if the other joint adopter, being an employee or an agency worker,has already elected to take time off under subsection (2)(b) or section 57ZN(2)(b).

658. Subsection (4) provides that an employee is not entitled to take time off to attendadoption appointments under section 57ZJ on or after the date of the child’s placementfor adoption with the employee.

659. Subsection (5) limits the number of adoption appointments that may be taken undersection 57ZJ to no more than five for any particular adoption.

660. Subsection (6) limits the maximum amount of time off for each adoption appointmentto six and a half hours.

661. Subsection (7) provides that the adoption appointment must have been arranged by orat the request of the adoption agency which made the notification of the placement orthe expected placement for adoption.

662. Subsection (8) provides a single adopter is not entitled to take time off undersubsection (1) unless he or she provides their employer upon request with a documentshowing the date and time of the adoption appointment in question and that it has beenarranged by an adoption agency.

663. Subsection (9) provides that a joint adopter employee is not entitled to take time offunder subsection (2), unless the employee provides their employer upon request witha document that shows the date and time of the adoption appointment and a signeddeclaration stating that they have made an election to take time off under subsection (2)(b).

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664. Subsection (10) provides that the document that shows the date and time of theappointment or the declaration relating to the election under subsection (8) or (9) canbe in electronic form.

665. Subsection (11) makes provision to modify the operation of section 57ZJ where morethan one child is to be, or is expected to be, placed as part of the same arrangement(for example, where siblings are to be placed with the same adopter) so that, wherethe adoption appointments relate to the adoption of more than one child: the electionunder subsection (2)(b) relates to all the children, the maximum number of adoptionappointments remains five in total, and the date after which no time off can be taken toattend an adoption appointment is the placement date of the first child.

666. Subsection (12) provides that the working hours of an employee are to be taken tobe any time in accordance with the employee’s contract of employment that they arerequired to be at work.

667. Subsection (13) provides that in section 57ZJ “adoption agency” has the meaning givenin section 2 of the Adoption and Children Act 2002 or as defined in section 119(1)(a)of the Adoption and Children (Scotland) Act 2007.

Section 57ZK: Right to remuneration for time off for adoption appointments

668. Subsection (1) makes provision for an employee entitled to attend adoptionappointments under section 57ZJ to be paid remuneration by his or her employer forthe number of working hours for which the employee is entitled to be absent at theappropriate hourly rate.

669. Subsection (2) makes provision that the hourly rate will be the amount of one week’spay divided by the number of normal working hours in a week for that employee whenemployed under the contract of employment in force on the day when the time off istaken.

670. Subsection (3) makes provision that where the number of normal working hours differsfrom week to week or over a longer period, the amount of one week’s pay shall bedivided instead by the average number of normal working hours calculated by dividingby twelve the total number of the employee’s normal working hours during the periodof twelve weeks ending with the last complete week before the day on which the timeoff is taken. Or, where an employee has not been employed for a sufficient period toenable the calculation based on twelve weeks to be made, a number is used which fairlyrepresents the number of normal working hours in a week, having regard to specifiedconsiderations.

671. Subsection (4) stipulates the specific considerations required to be borne in mind bysection 57ZK(3) when choosing a number of weeks to divide the employee’s salary bywhen the employee has not been employed for twelve weeks.

672. Subsection (5) provides that any amount of remuneration for time off undersubsection (1) does not affect any right to contractual remuneration. However,subsections (6) and (7) provide that any contractual remuneration paid by an employerfor time off under section 57ZJ will go towards discharging any liability of thatemployer to pay remuneration under section (1), and vice versa.

Section 57ZL: Right to unpaid time off to attend adoption appointments

673. Subsection (1) creates a right for an employed adopter who has been notified by anadoption agency that a child is to be, or is expected to be, placed for adoption withhim or her and another person jointly, to take time off to attend an appointment for thepurpose of having contact with the child or for any other purpose connected with theadoption (an “adoption appointment”), provided he or she has elected to take time offunder subsection (1)(b).

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674. Subsection (2) provides that an employee may not elect to take time off undersubsection (1) if they have already elected to take paid time off under section 57ZJ, or ifthe other joint adopter has already elected to take unpaid time off under subsection (1)(b) or under section 57ZP(1)(b).

675. Subsection (3) provides that an employee is not entitled to take time off to attendadoption appointments under section 57ZJ on or after the date of the child’s placementfor adoption with the employee.

676. Subsections (4) and (5) limit the number of adoption appointments that may be takenunder section 57ZL to two appointments of six and a half hours each.

677. Subsection (6) provides that the adoption appointment must have been arranged by orat the request of the adoption agency which made the notification of the placement orthe expected placement for adoption.

678. Subsection (7) provides that an employee is not entitled to take time off under thissection unless he or she provides their employer upon request with a document showingthe date and time of the adoption appointment in question and that it has been arrangedby an adoption agency, and a signed declaration that he or she has made an electionfor the purposes of subsection (1)(b). The declaration or document may be in electronicform (subsection (8)).

679. Subsection (9) makes provision to modify the operation of section 57ZL where morethan one child is to be, or is expected to be, placed as part of the same arrangement(for example, where siblings are to be placed with the same adopter) so that, wherethe adoption appointments relate to the adoption of more than one child: the electionunder subsection (1)(b) relates to all the children, the maximum number of adoptionappointments remains two in total and the date after which no time off can be taken toattend an adoption appointment is the placement date of the first child.

680. Subsection (10) provides that the working hours of an employee are to be taken tobe any time in accordance with the employee’s contract of employment that they arerequired to be at work.

681. Subsection (11) provides that in section 57ZJ “adoption agency” has the meaning givenin section 2 of the Adoption and Children Act 2002 or as defined in section 119(1)(a)of the Adoption and Children (Scotland) Act 2007.

Section 57ZM: Complaint to employment tribunal

682. This section provides that an employee who is unreasonably refused time off undersection 57ZJ or 57ZL to attend an adoption appointment by an employer, or is not paidamounts due under section 57ZK may present a complaint to an employment tribunalwithin the designated time limits. If the complaint is substantiated, the tribunal mustmake an order to this effect. The tribunal must also, where the complaint is that time offwas refused, award compensation of twice the hourly rate multiplied by the number ofhours absence the employee would have been entitled to had it not been refused. If thecomplaint is that amounts due under section 57ZK are unpaid, the tribunal must alsoorder payment of the unpaid amount.

Section 57ZN: Right to paid time off to attend adoption appointments: agencyworkers

683. Section 57ZN makes provision for agency workers to take paid time off to attendadoption appointments that is equivalent to that for employees in section 57ZJ.Subsection (12) provides that for the purposes of this section, an agency worker’sworking hours are any time when the agency worker is required to be at work inaccordance with the terms under which the agency worker is working (temporarily) forthe hirer.

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Section 57ZO: Right to remuneration for time off to attend adoptionappointments: agency workers

684. Section 57ZO makes provision for agency workers who are permitted to take timeoff under section 57ZN that is equivalent to that for employees under section 57ZK.Subsection (1) provides that the temporary work agency must pay remuneration at theappropriate hourly rate for the hours for which the agency worker is entitled to beabsent. Subsection (2) sets out how the hourly rate should be calculated in general,but subsection (3) sets out how the calculation should be made in situations where thenumber of an agency worker’s normal working hours differs from week to week.

Section 57ZP: Right to unpaid time off to attend adoption appointments: agencyworkers

685. Section 57ZP makes provision for agency workers to take unpaid time off to attendadoption appointments that is equivalent to the right for employees to take unpaid timeoff under section 57ZL. Subsection (10) provides that for the purposes of this sectionthe working hours of an agency worker are any time when he or she is required to beat work (temporarily) for the hirer.

Section 57ZQ: Complaint to employment tribunal: agency workers

686. This section makes provision for agency workers to make complaints to tribunals inrespect of refusal of permission to take time off (under section 57ZN or 57ZP) or failureto pay sums due (under section 57ZO) that is equivalent to the provision made foremployees under section 57ZM.

Section 57ZR: Agency workers: supplementary

687. This section provides (subsection (1)) that the rights to paid and unpaid time off, andthe right to present a complaint to a tribunal, do not apply if the agency worker hasnot completed the qualifying period, or if there is a break between assignments whichmeans that he or she is no longer entitled to the rights conferred by regulation 5 ofthe Agency Workers Regulations 2010. Subsection (2) makes clear that the rights topaid and unpaid time off do not impose any duty on the hirer or agency which extendsbeyond the original intended duration of the assignment. Subsection (3) makes clearthat if a person is entitled to take paid or unpaid time off as an employee, then they areexcluded from taking paid time or unpaid time off as an agency worker.

Section 129: Right not to be subjected to detriment: agency workers

688. Subsection (1) amends section 47C of the ERA to give agency workers a right not tobe subjected to a detriment by the temporary work agency or hirer on certain grounds.The grounds are that the agency worker:

• Took or sought to take time off for an ante-natal appointment under section 57ZAor 57ZG of the ERA;

• Received or sought to receive remuneration under section 57ZB of the ERA fortime off to attend an ante-natal appointment (only available to pregnant women);

• Took or sought to take time off for an adoption appointment under section 57ZNor 57ZP of the ERA; or

• Received or sought to receive remuneration under section 57ZO of the ERA fortime off to attend an adoption appointment (only available to the primary adopter).

689. Subsection (2) amends section 48 of the ERA to allow an agency worker who has beensubjected to such a detriment to present a complaint to an employment tribunal. It isfor the temporary work agency or the hirer to show the ground on which any act ordeliberate failure to act was done.

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690. Subsection (3) amends section 49 of the ERA to provide that if such a complaintis well-founded, the tribunal shall make a declaration to that effect and may awardcompensation to be paid to the agency worker by the temporary work agency, the hirer,or both.

Section 130: Time off work for ante-natal care: increased amount of award

691. Subsection (1) amends section 57 of the ERA to increase the amount of compensationthat must be ordered by an employment tribunal which finds that a pregnant employeehas unreasonably been refused time off work under section 55 of the ERA to attend anante-natal appointment. The amount is increased from the hourly salary of the employeefor the period of absence to twice that amount.

692. Subsection (2) amends section 57ZC of the ERA to increase the amount ofcompensation that must be ordered by an employment tribunal which finds thata pregnant agency worker has unreasonably been refused time off work undersection 57ZA of the ERA to attend an ante-natal appointment. The amount is increasedfrom the hourly salary of the agency worker for the period of absence to twice thatamount.

Part 9 – Right to Request Flexible Working

Section 131: Removal of the requirement to be a carer

693. This section removes the requirement that an employee must have parental or caringresponsibility in order to make a request to their employer to change their terms andconditions with respect to hours and location of work.

694. Subsection (1) repeals section 80F(1)(b) of the ERA which requires an employee to beresponsible for the care of a child or in certain cases a person over the age of 18 in orderto make a request for flexible working. This means that all employees who have thenecessary period of service with their employer (currently 26 weeks) will have a rightto request flexible working.

695. Subsection (2) also repeals other provisions which are no longer necessary followingthe removal of the requirement to be the carer of a child or adult.

Section 132: Dealing with applications

696. This section deals with changes to the procedure which employers must follow whendealing with a flexible working request.

697. Subsection (2) amends section 80G of the ERA to remove the requirement on employersto follow a statutory procedure when considering flexible working requests. Thisprocedure is currently set out in the Flexible Working (Procedural Requirements)Regulations 2002 (S.I. 2002/3207). These regulations will be revoked. In place of this,subsection (2) introduces a duty on employers to consider requests in a reasonablemanner.

698. Subsection (2) also amends section 80G to introduce a requirement on the employerto notify the employee of its decision within a certain period of time. Subsection (3)provides that the employer must give its decision within 3 months beginning on thedate that the application is made. This period can be extended by agreement betweenthe employer and employee.

699. Subsection (4) sets out the circumstances in which the employer can treat a flexibleworking request as withdrawn. They are where an employee fails to attend twoconsecutive meetings to discuss the request or an appeal with their employer withoutgood reason.

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Section 133: Complaints to employment tribunals

700. This section amends the rules which apply to the making of a complaint relating to arequest for flexible working to an employment tribunal.

701. Subsection (2) amends section 80H of the ERA to provide that an employee may makea complaint to an employment tribunal if the employer sought to treat the employee’sflexible working request as withdrawn without having grounds to do so. Subsection(5) provides that an employee may make this complaint as soon as the employer hasinformed the employee that it is treating the request as withdrawn.

702. Subsection (3) amends section 80H of the ERA to provide a change consequential onthe addition of a new ground of complaint.

703. Subsection (4) amends section 80H of the ERA to set out the rules on when an employeemay make a complaint relating to a flexible working request to an employment tribunal.It provides that an employee cannot make a complaint to an employment tribunal untila final decision has been made by their employer. An employee is required to haveexhausted any appeal which is offered by the employer before making a complaint.

704. It also amends section 80H of the ERA to provide that if the employer does not informthe employee of its decision within the required period of time, the employee may makea complaint to an employment tribunal or, if the employer and employee have agreedan extension of time, the employee may make a complaint at the end of the extendedperiod.

705. An employee has a period of three months from the “relevant date” to make a complaintrelating to a flexible working request to an employment tribunal. Subsection (6)provides that the “relevant date” will be the date on which the employer informed theemployee of its final decision. Or, if the employee is complaining that the employerdid not have grounds to treat the request as withdrawn, the “relevant date” will be thedate on which the employer informs the employee that it is treating the application aswithdrawn.

Section 134: Review of sections 131 to 133

706. This section sets out the requirement for the Secretary of State to review sections 131 to133 of the Act and to set out the conclusions in a report which he or she must publish.

707. The report must include the objectives of the amendments to the ERA; to what extentthose objectives have been achieved; and whether the objectives should remain the sameand whether there is a less regulatory approach that could achieve the same objectives.

708. The report must be published within 7 years of the sections coming into force andsubsequent reports must be published in not more than 7 year intervals from publicationof the previous report.

Part 10 – General Provisions

Section 135: Orders and regulations

709. This section provides that all orders and regulations made by the Secretary of Stateor the Lord Chancellor under the Act are to be made by statutory instrument. Ordersmade under section 78(6) (Order relating to the coming into force of the SEN Code ofPractice)), section 137 (Transitional, transitory or saving provision) and section 139(Commencement) are not subject to any parliamentary procedure. The first regulationsto be made under section 49, an order under section 58(1) or 59(1), regulations undersections 70(3), 92, 93, 94(6), (8), (9) or (10), or under section 94(11) or 136 that amendprimary legislation, will be subject to the affirmative resolution procedure. In additionany order made under section 3A of the Adoption and Children Act 2002 (insertedby section 4 of this Act), and the first regulations made under section 4A (inserted by

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section 5), and section 128A(4) (inserted by section 7) of that Act are subject to theaffirmative resolution procedure. All other orders and regulations made under this Actare subject to the negative resolution procedure.

710. This section allows for orders or regulations to make different provision for differentpurposes (including different areas) and to make provision generally or in relation tospecific cases. Other than in relation to orders made under section 78(6) (Order relatingto the coming into force of the SEN Code of Practice), section 137 (Transitional,transitory or saving provision) or section 139 (Commencement), a power to make anorder or regulations includes power to make incidental, supplementary, consequential,transitional or transitory provision or saving.

Section 136: Consequential amendments, repeals and revocations

711. This section allows the Secretary of State or the Lord Chancellor to make orders thatmake consequential amendments to other legislation. By virtue of section 135(6), wheresuch orders amend primary legislation, they will be subject to the affirmative procedure.

Section 137: Transitional, transitory or saving provision

712. Subsection (1) allows the Secretary of State or Lord Chancellor to make transitionalprovision in connection with the commencement of the provisions of the Act.

713. Subsections (2) to (5) relate to offences contained in the Act which are punishable bythe magistrates’ court on summary conviction with a fine of £5000. These subsectionscontain transitional provisions to cater for the situation where section 85 of the LegalAid, Sentencing and Punishment of Offenders Act 2012 (“the 2012 Act”) comes intoforce on or before the day on which this Act receives Royal Assent.

714. Once section 85 of the 2012 Act is commenced, offences which are punishable by themagistrates’ court on summary conviction with a fine of £5000, will be punishable by anunlimited fine instead. In addition, following the commencement of section 85, powersto create an offence punishable by a fine of £5000 will, instead, be able to be exercisedto create an offence punishable by a fine of any amount.

715. Subsection (3) operates so as to treat the offences listed within that subsection asoffences in respect of which section 85(1) of the 2012 Act removes the maximum fine.

716. Subsection (4) applies to the power in the new section 69A(1)(b) to be inserted into theChildcare Act 2006 which allows regulations to create offences relating to things donewhilst registration with a childminder agency is suspended. Subsection (4) operates soas allow an offence to be created by regulations made under new section 69A(1)(b)which is punishable by a fine of any amount.

717. Subsection (5) refers to regulations made under section 85 and to regulations madeunder section 149 of the 2012 Act (Power to make consequential and supplementaryprovision etc.) which make provision in relation to section 85. Subsection (5) allowssuch regulations to amend, repeal or otherwise modify a provision of this Act or theChildcare Act 2006.

Section 139: Commencement

718. This section provides for the commencement of the Act. The provisions that relate tofamily justice and that are mentioned in subsection (3) will come into force on a dateappointed by the Lord Chancellor. Sections 18 (Repeal of uncommenced provisions ofPart 2 of the Family Law Act 1996), 90 (extension of licensing of child performancesto children under 14), 101 (Local authority functions etc), and 102 to 104 (concerningchildren’s homes) come into force two months after the date on which the Act is passed.Part 6 comes into force on 1 April 2014. Part 10 (General Provisions) comes into forceon the date on which the Act is passed. The other provisions of the Act will come intoforce on a day appointed by the Secretary of State by order, except for section 1 over

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which the Welsh Ministers have commencement powers in relation to Wales. Any ordermade under this section can appoint different days for different purposes.

Section 140: Short title and extent

719. Section 126(2) to (4)(statutory rights to leave and pay: further amendments) andsection 134 (review of sections on the right to request flexible working) extend toEngland, Wales and Scotland. In some cases section 126(3) and (4) also extends toNorthern Ireland. Section 94 extends to the whole of the United Kingdom. Part 10(General Provisions) extends to the whole of the United Kingdom. Save for the repealmade by section 90, where a provision of the Act amends or repeals other legislation,that amendment or repeal has the same extent as the provision which is amended orrepealed. Subject to the above the Act extends to England and Wales only.

HANSARD REFERENCES

720. The following table sets out the dates and Hansard references for each stage of the Act’spassage through Parliament.

Stage Date Hansard reference

House of Commons

Introduction 4 February 2013 Vol. 558, col. 48

Second Reading 25 February 2013 Vol. 559, col. 45-134

5 March 2013

7 March 2013

12 March 2013

14 March 2013

19 March 2013

21 March 2013

15 April 2013

16 April 2013

18 April 2013

23 April 2013

Committee

25 April 2013

Public Bill CommitteeChildren and Families Bill

Report 11 June 2013 Vol. 564, col. 175-285

Third Reading 11 June 2013 Vol. 564, co.l 285-294

Commons Consideration of LordsAmendments

10 February 2014 Vol. 575, col. 600-666

Royal Assent 14 March 2014 Vol. 577, col. 455

House of Lords

Introduction 12 June 2013 Vol. 745, col. 1604

Second Reading 2 July 2013 Vol. 746, col. 1092-1202

9 October 2013 Vol. 748, col. GC1-GC56


Committee


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Stage Date Hansard reference





4 November 2013 Vol. 749, col. GC1-GC60

6 November 2013 Vol. 749, col. GC61-GC122

11 November2013

Vol. 749, col. GC187-GC250

18 November2013

Vol. 749, col. GC295-GC370

20 November2013

Vol. 749, col. GC403-GC496

9 December 2013 Vol. 750, col. 590-660

17 December2013

Vol. 750, col. 1143-1217

7 January 2014 Vol. 750, col. 1397-1490

28 January 2014 Vol. 751, col. 1116-1200

Report

29 January 2014 Vol. 751, col. 1215-1270 and1299-1350

Third Reading 5 February 2014 Vol. 752, col. 204-256

Royal Assent 13 March 2014 Vol. 752, col. 1855

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These notes refer to the Children and Families Act 2014 (c.6) which received Royal Assent on 13 March 2014

ANNEX A – FURTHER DETAIL ON FAMILY JUSTICE PROVISIONS:

WELFARE OF THE CHILD: PARENTAL INVOLVEMENT

721. A process map and examples are set out on the following page in order to further explainhow the presumption is expected to fit with the decision making process.

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92


722. Below are five example scenarios included to illustrate how the court might applythe presumption in practice. The purpose of these examples is to explain how thepresumption is expected to fit with the decision making process and the result reachedby the court in each case would of course depend entirely on the facts of the particularcase. These examples are in no way intended to suggest that a particular decision shouldbe reached in a particular case.

723. The following fictitious examples are included in order to illustrate how the court mightapply the presumption in practice. The purpose of these examples is to explain how thepresumption is expected to fit with the decision making process and the result reachedby the court in each case would of course depend entirely on the facts of the particularcase. These examples are in no way intended to suggest that a particular decision shouldbe reached in a particular case.

EXAMPLE 1

724. Parent A and Parent B are married and have one child together. Parent A left the maritalhome and Parent B refuses to let Parent A see their child. Parent A wants to be able tosee the child at the weekends. Parent A applies for a child arrangements order that setsout that the child should stay over with Parent A from Saturday evening until Sundaymorning.

725. Each parent is treated by the court as being able to have safe involvement with the childas no concerns are raised that Parent A or Parent B pose a risk of harm to the child. Thepresumption therefore applies in respect of each parent and the court has to presumethat it will further the welfare of the child for Parent A and Parent B to be involvedin the child’s life.

726. Parent B is very hurt and upset that Parent A left the marital home and feels that byleaving the home, Parent A has forsaken any “rights” to the child. Parent B, however,does not allege that it would not further the child’s welfare for Parent A to haveinvolvement in the child’s life.

727. The court has evidence before it that the child had a very good relationship with ParentA before Parent A left the marital home. The court also has evidence relating to thechild’s wishes and feelings that the child wants to see and stay with Parent A.

728. The presumption stands in respect of both Parent A and Parent B. The court makesits decision, weighing the presumption alongside the other considerations in section 1of the Children Act 1989, with the child’s welfare remaining at all times the court’sparamount consideration.

EXAMPLE 2


730. The court receives a section 7 “welfare report” from the Cafcass officer that Parent Bhas suffered continual emotional abuse at the hands of Parent A and that such abusewas witnessed by the child and distressed the child. The court decides that it is not ableto decide whether Parent A can be involved in the child’s life without causing a risk ofharm, without hearing further evidence.

731. The court hears evidence regarding the emotional abuse and the effect that it has on thechild. It also hears that the child wants to see Parent A and has a very good relationshipwith Parent A’s mother (Grandmother A) who is on good terms with Parent B. Thecourt decides that Parent A could have involvement in the child’s life that does not posea risk of harm if the child has indirect contact with Parent A or contact with Parent A at

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Grandmother A’s house in a situation where Parent A does not come into contact withParent B (so Grandmother A could collect the child to take home and Parent A wouldvisit at Grandmother A’s house).

732. The presumption therefore applies and the court has to presume that it will further thewelfare of the child for Parent A to be involved in the child’s life. Parent B is very scaredof Parent A as a result of years of emotional abuse. Parent B does not, however, allegethat it would be contrary to the child’s welfare for Parent A to have any involvementwith the child. Parent B would prefer that Parent A has indirect contact only of thenature of occasional letter writing. The court has evidence before it that the child oftenused to spend time at Grandmother A’s house when Parent A used to take the child tovisit her and that the involvement by Parent A in the child’s life in that context wasfound enjoyable by and rewarding to the child.

733. The presumption stands in respect of both Parent A and Parent B. The court makesits decision, weighing the presumption alongside the other considerations in section 1of the Children Act 1989, with the child’s welfare remaining at all times the court’sparamount consideration.

EXAMPLE 3

734. Parent A and Parent B are married and have one child together. Parent A left the maritalhome and Parent B refuses to let Parent A see their child. Parent A wants to be able tosee the child at the weekends. Parent A applies for a [child arrangements order] that setsout that the child should stay over with Parent A from Saturday evening until Sundaymorning.

735. Parent B alleges that Parent A has a history of emotionally and physically abusingParent B and the child. Parent B alleges that Parent A cannot be involved in any way inthe child’s life without posing a risk of harm to the child. The section 7 welfare reportfrom Cafcass confirms that this is the case and confirms that Parent A has caused suchharm to the child in the past that the child feels extremely distressed at the thought ofany contact with Parent A. There is also an allegation before the court that Parent A hassent the child threatening letters which also contain abuse levelled at the child. ParentA disputes this account. The court decides, after a consideration of all the evidence,that the prospect of any contact with Parent A would pose a risk of harm to the childand concludes that it is probable that even indirect contact in the form of letter writingwould harm the child. The court therefore decides that the presumption does not apply.

736. Parent A’s lawyer argues that Parent A has rights under Article 8 of the ECHR whichshould mean that some form of contact should be ordered. The court balances the Article8 rights of Parent A against those of the child and Parent B and follows Strasbourgjurisprudence which holds that when there is a conflict between Article 8 rights, thechild’s rights prevail.

737. The court makes its decision, weighing the fact that the presumption does not apply toParent A alongside the other considerations in section 1 of the Children Act 1989, withthe child’s welfare remaining at all times the court’s paramount consideration.

EXAMPLE 4


739. Each parent is treated by the court as being able to have safe involvement with the childas no concerns are raised that Parent A or Parent B pose a risk of harm to the child.

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The presumption therefore applies and the court has to presume that it will further thewelfare of the child for Parent A to be involved in the child’s life.

740. The child is 15 years old and the court has before it a section 7 welfare report that setsout that the child does not want to see Parent A or have any contact with Parent A asParent A finds it difficult to come to terms with a recent declaration from the child thatthe child is gay and Parent A has refused to acknowledge that the child is gay. Thechild has expressed a strong wish to be able to explore issues of sexuality and feels thatany contact with Parent A would inhibit this. The court decides that at the moment thechild’s welfare will not be furthered by involvement with Parent A and the presumptionis rebutted.

741. The court makes its decision, weighing this factor alongside the other considerationsin section 1 of the Children Act 1989, with the child’s welfare remaining at all timesthe court’s paramount consideration.

EXAMPLE 5

742. Parent A and Parent B were married and had a child. Their marriage has subsequentlybroken down, and the child lives with Parent B and has regular contact with Parent A.Parent A applies for a child arrangements order that sets out that the child should livewith Parent A full time and alleges that Parent B poses a risk of harm to the child.

743. Parent A claims that Parent B has been verbally and physically abusive to the childon several occasions. The court hears evidence of Parent A’s allegations, which aresupported by other witnesses.

744. The court is of the view after considering the evidence that Parent B poses a risk ofharm to the child. The court considers that despite the risk of harm presented by thecurrent arrangement, so long as Parent B is not left alone with the child, it would bepossible for Parent B to continue to have some form of involvement in the child’s lifethat would not expose the child to a risk of harm, such as indirect or supervised contact,accordingly the presumption applies in respect of parent B and the court presumes thatthe child’s welfare would be furthered by such involvement.

745. There is no evidence to suggest that Parent A poses any risk of harm to the child,in fact there is a strong relationship between the child and Parent A. On that basisthe presumption stands in respect of Parent A and the court presumes that the child’swelfare would be furthered by the involvement of Parent A in the child’s life. There isno evidence advanced by Parent B to suggest otherwise.

746. The presumption stands in respect of both Parent B and Parent A. The court makesits decision, weighing the presumption alongside the other considerations in section 1of the Children Act 1989, with the child’s welfare remaining at all times the court’sparamount consideration.

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ANNEX B: TERRITORIAL EXTENT AND APPLICATION TABLE:

SectionNumber

Title Application of Section

PART 1

ADOPTION AND CONTACT

Adoption

1 Contact between prescribed persons and adoptedperson’s relatives

England and Wales only

2 Placement of looked after children withprospective adopters

England only

3 Repeal of requirement to give due considerationto ethnicity: England

England only

4 Recruitment, assessment and approval ofprospective adopters

England only

5 Adoption support services: personal budgets England only

6 Adoption support services: duty to provideinformation

England only

7 The Adoption and Children Act Register England, Wales andScotland

Contact

8 Contact: children in care of local authorities England and Wales only

9 Contact: post-adoption England and Wales only

PART 2

FAMILY JUSTICE

10 Family mediation information and assessmentmeetings


11 Welfare of the child: parental involvement England and Wales only

12 Child arrangements orders England and Wales only

13 Control of expert evidence, and of assessments,in children proceedings


14 Care, supervision and other family proceedings:time limits and timetables


15 Care plans England and Wales only

16 Care proceedings and care plans: regulations:procedural requirements


17 Repeal of restrictions on divorce and dissolutionetc where there are children


18 Repeal of uncommenced provisions of Part 2 ofthe Family Law Act 1996


PART 3

CHILDREN AND YOUNG PEOPLE IN ENGLAND WITHSPECIAL EDUCATIONAL NEEDS OR DISABILITIES

96


SectionNumber


Local authority functions: general principles

19 Local authority functions: supporting andinvolving children and young people

England only

Special educational needs etc

20 When a child or young person has specialeducational needs

England only

21 Special educational provision, health careprovision and social care provision

England only

Identifying children and young people with special educational needs and disabilities

22 Identifying children and young people withspecial educational needs and disabilities

England only

23 Duty of health bodies to bring certain children tolocal authority’s attention

England only

Children and young people for whom a local authority is responsible

24 When a local authority is responsible for a childor young person

England only

Education, health and care provision: integration and joint commissioning

25 Promoting integration England only

26 Joint commissioning arrangements England only

Review of education and care provision

27 Duty to keep education and care provision underreview

England only

Co-operation and assistance

28 Co-operating generally: local authority functions England only

29 Co-operating generally: governing bodyfunctions

England only

Information and advice

30 Local offer England only

31 Co-operating in specific cases: local authorityfunctions

England only

32 Advice and information England only

Mainstream education

33 Children and young people with EHC plans England only

34 Children and young people with specialeducational needs but no EHC plan

England only

35 Children with SEN in maintained nurseries andmainstream schools

England only

Assessment

36 Assessment of education, health and care needs England only

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SectionNumber


Education, health and care plans

37 Education, health and care plans England only

38 Preparation of EHC plans: draft plan England only

39 Finalising EHC plans: request for particularschool or other institution

England only

40 Finalising EHC plans: no request for particularschool or other institution

England only

41 Independent special schools and special post-16institutions: approval

England only

42 Duty to secure special educational provision andhealth care provision in accordance with EHCPlan

England only

43 Schools and other institutions named in EHCplan: duty to admit

England only

44 Reviews and re-assessments England only

45 Ceasing to maintain an EHC plan England only

46 Maintaining an EHC plan after young person’s25th birthday

England only

47 Transfer of EHC plans England only

48 Release of child or young person for whom EHCplan previously maintained

England only

49 Personal budgets and direct payments England only

50 Continuation of services under section 17 of theChildren Act 1989

England only

Appeals, mediation and dispute resolution

51 Appeals England only

52 Right to mediation England only

53 Mediation: health care issues England only

54 Mediation: educational and social care issues etc England only

55 Mediation England only

56 Mediation: supplementary England only

57 Resolution of disagreements England only

58 Appeals and claims by children: pilot schemes England only

59 Appeals and claims by children: follow-upprovision

England only

60 Equality Act 2010: claims against schools bydisabled young people


Special educational provision: functions of local authorities

61 Special educational provision otherwise than inschools, post-16 institutions etc

England only

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SectionNumber


62 Special educational provision outside Englandand Wales

England only

53 Fees for special educational provision at non-maintained schools and post-16 institutions

England only

64 Supply of goods and services England only

65 Access to schools, post-16 institutions and otherinstitutions

England only

Special educational provision: functions of governing bodies and others

66 Using best endeavours to secure specialeducational provision

England only

67 SEN co-ordinators England only

68 Informing parents and young people England only

69 SEN information report England only

Detained persons

70 Application of Part to detained persons England and Wales only

71 Assessment of post-detention education, healthand care needs of detained persons

England only

72 Securing EHC plans for certain detained persons England only

73 EHC plans for certain detained persons: appealsand mediation

England only

74 Duty to keep EHC plans for detained persons England only

75 Supply of goods and services: detained persons England only

Information to improve well-being of children and young people with SEN

76 Provision and publication of special needsinformation

England only

Code of practice

77 Code of practice England only

78 Making and approval of code England only

79 Review of resolution of disagreements England only

Supplementary

80 Parents and young people lacking capacity England only

81 Disapplication of Chapter 1 of Part 4 of EA 1996in relation to children in England

England only

82 Consequential amendments England only

83 Interpretation of Part 3 England only

PART 4

CHILDCARE ETC

84 Childminder agencies England only

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SectionNumber


85 Inspections at request of providers of childcareto young children

England only

86 Repeal of local authority’s duty to assesssufficiency of childcare provision

England only

87 Discharge of authority’s duty to secure free earlyyears provision

England only

88 Governing bodies: provision of communityfacilities

England only

89 Childcare costs scheme: preparatory expenditure England only

PART 5

WELFARE OF CHILDREN

90 Extension of licensing of child performances tochildren under 14


91 Purchase of tobacco etc. on behalf of personsunder 18


92 Prohibition of sale of nicotine products topersons under 18


93 Amendments consequential on section 92 England and Wales only

94 Regulation of retail packaging etc of tobaccoproducts

UK-wide

95 Protection of children’s health: offence ofsmoking in a private vehicle


96 Young carers England only

97 Parent carers England only

98 Arrangement for living with former fosterparents after reaching adulthood

England only

99 Promotion of educational achievement ofchildren looked after by local authorities

England only

100 Duty to support pupils with medical conditions England only

101 Local authority functions relating to children etc:intervention


102 Application of suspension etc powers toestablishments and agencies in England

England only

103 Objectives and standards for establishments andagencies in England

England only

104 National minimum standards for establishmentsand agencies in England

England only

105 Disqualification from carrying on, or beingemployed in, a children’s home

England only

106 Provision of free school lunches England only

PART 6

100


SectionNumber


THE CHILDREN’S COMMISSIONER

107 Primary function of the Children’sCommissioner

England primarily. Appliesto Scotland, Wales andNorthern Ireland where theChildren’s Commissioner’srole in promoting andprotecting the rights ofchildren is in relation tonon-devolved matters.

108 Provision by Commissioner of advice andassistance to certain children


109 Commissioner’s powers to enter premises England primarily. Appliesto Scotland, Wales andNorthern Ireland where theChildren’s Commissioner’srole in promoting andprotecting the rights ofchildren is in relation tonon-devolved matters.

110 Provision of information to Commissioner England primarily. Appliesto Scotland, Wales andNorthern Ireland where theChildren’s Commissioner’srole in promoting andprotecting the rights ofchildren is in relation tonon-devolved matters.

111 Advisory board England primarily. Appliesto Scotland, Wales andNorthern Ireland where theChildren’s Commissioner’srole in promoting andprotecting the rights ofchildren is in relation tonon-devolved matters.

112 Business plans England primarily. Appliesto Scotland, Wales andNorthern Ireland where theChildren’s Commissioner’srole in promoting andprotecting the rights ofchildren is in relation tonon-devolved matters.

113 Annual reports England primarily. Appliesto Scotland, Wales and

101


SectionNumber


Northern Ireland where theChildren’s Commissioner’srole in promoting andprotecting the rights ofchildren is in relation tonon-devolved matters.

114 Children living away from home or receivingsocial care


115 Children’s Commissioner: minor andconsequential amendments


116 Repeal of requirement to appoint Children’sRights Director


PART 7

STATUTORY RIGHTS TO LEAVE AND PAY

Shared parental leave

117 Shared parental leave England, Wales andScotland only

118 Exclusion or curtailment of other statutory rightsto leave

England, Wales andScotland only

Statutory shared parental pay

119 Statutory shared parental pay England, Wales andScotland only

120 Exclusion or curtailment of other statutory rightsto pay


Other statutory rights

121 Statutory rights to leave and pay of prospectiveadopters with whom looked after children areplaced


102


SectionNumber


122 Statutory rights to leave and pay of applicants forparental orders


123 Statutory paternity pay: notice requirement andperiod of payment


124 Rate of statutory adoption pay England, Wales andScotland only

125 Abolition of additional paternity leave andadditional statutory paternity pay


Further amendments

126 Further amendments In part England, Wales andScotland; in part NorthernIreland

PART 8

TIME OFF WORK: ANTE-NATAL CARE ETC

127 Time off work to accompany to ante-natalappointments


128 Time off work to attend adoption appointments England, Wales andScotland only

129 Right not to be subjected to detriment: agencyworkers


130 Time off work for ante-natal care: increasedamount of award


PART 9

RIGHT TO REQUEST FLEXIBLE WORKING

131 Removal of requirement to be a carer England, Wales andScotland only

132 Dealing with applications England, Wales andScotland only

133 Complaints to employment tribunals England, Wales andScotland only

134 Review of sections 131 to 133 England, Wales andScotland only

PART 10

GENERAL PROVISIONS

135 Orders and regulations UK-Wide

136 Consequential amendments, repeals andrevocations

UK-Wide

137 Transitional, transitory or saving provision UK-Wide

138 Financial provision UK-Wide

139 Commencement UK-Wide

140 Short title and extent UK-Wide

103

explanatory notes to children and families act 2014 · 2020. 4. 23. · these notes refer to the...

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